Winning a juvenile waiver hearing; it was too good to be true
STATE OF NEW JERSEY IN THE INTEREST OF A.W.
________________________________
Before Judges Fisher and C.L. Miniman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2863-08.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant State of New Jersey (Stephanie McClure, Assistant Prosecutor, on the brief).
Yvonne Smith Segars, Public Defender, attorney for respondent minor A.W. (John Moehring, Designated Counsel, of counsel and on the brief).
PER CURIAM
The State appeals from the dismissal of a juvenile complaint charging A.W. (the juvenile) with acts that would constitute first-degree robbery and second-degree aggravated assault had they been committed by an adult. The State sought a waiver of Family Part jurisdiction and a referral to the Law Division. At the hearing on the waiver application, the State presented testimony from five investigating officers to establish probable cause to believe that the juvenile was involved in the delinquent acts that had occurred. The juvenile testified at the waiver hearing in opposition to a finding of probable cause. The judge subsequently refused to waive jurisdiction, concluded that the evidence was insufficient to find probable cause, and dismissed the juvenile complaint. We reverse and reinstate the complaint because the evidence was more than sufficient to establish probable cause.
Jersey City Police Officer Frank Connaughton was the first officer to testify. He, along with Officer Erica Vagarra, responded to a report at 3:30 p.m. of a robbery and aggravated assault in front of a church on March 17, 2008, and arrived less than thirty seconds later. An ambulance was already at the scene. There, they were met by Terry,1 a juvenile victim born on July 18, 1990, who stated that she was walking eastbound on Montgomery Street from Brunswick Street when she was approached by three black females, who began to push her. One of the three, Susan, also a juvenile, reached for Terry’s bag and into her jacket pocket, attempting to take Terry’s cell phone. The other two females continued to push Terry and one of the three grabbed and pulled her hair. Terry reported that there was a group of black males, including the juvenile, on the other side of the street near a high school watching the struggle among the females. When a Good Samaritan, Hippolito Mendoza, an adult, intervened in the scuffle, the group of black males crossed the street and the juvenile picked up Mendoza and slammed him onto the sidewalk. Terry reported that she could positively identify Susan.
Connaughton spoke with Marisol Cruz, an adult witness, who stated that she saw three black females pushing Terry and then saw several black males, one of whom slammed Mendoza onto the sidewalk. He also spoke with George Vega, Jr., another adult witness, who stated that he saw the juvenile physically pick Mendoza up and slam him to the ground. Then, the ambulance personnel, who were treating Mendoza for an abrasion to his left eyelid with bruises and swelling and a left-wrist abrasion, transported him to the Jersey City Medical Center.
Connaughton testified to the descriptions of the juvenile, Susan, and the other two females, contained in his report. The juvenile was described as “[b]lack male, dark skinned, five foot eleven, a hundred and twenty five pounds, thi[c]k build with dark brown short afro wearing a black tee shirt, black hooded zipper sweatshirt, blue jeans and black sneakers.” The description of the male juvenile was given to central command and surrounding units in an attempt to locate him. At 3:40 p.m. Officer Brian Gajewski and Officer L. Santiago reported that they observed the juvenile in the courtyard of a public housing complex and took him into custody. He was returned to the scene, where he was positively identified by Cruz and Vega.
At 3:56 p.m. Terry and Cruz were transported to the juvenile bureau by Officers Joe Manna and C. Kaye and Vega was transported by Sergeant Scerbo. At that time, juvenile detectives Donnie McGhee and Marjorie Jordan took over the investigation and obtained statements from the witnesses.
In the meantime, the Bureau of Criminal Investigation (BCI) photographed the roped-off scene, including the pool of blood on the sidewalk. Connaughton and Vagarra arrived at the hospital to talk with Mendoza. BCI also went to the hospital to photograph Mendoza’s injuries, who told them he could not identify the person who injured him because the person grabbed him from behind and slammed him face first to the pavement. Mendoza was seen by Dr. Wasserman, who told Connaughton that Mendoza had a facial-bone fracture, a possible broken left wrist in addition to the injuries to his left eye, and that X-rays and a CT-scan would be done. While there, they spoke with the victim’s daughter, Nancy, and her friend, who knew Susan’s name based on information they obtained from another unidentified juvenile witness. Susan was arrested later that day.
Gajewski testified that he and Santiago were dispatched to the scene at 3:30 p.m. on a report of a robbery and assault when he received a dispatch describing the juvenile who assaulted Mendoza and was told that he was walking with three other black males on South Brunswick Street heading towards a public housing complex. They began to canvass the area and in a couple of minutes saw a group of four black males walking into the housing complex about four blocks from the scene of the robbery and assault. About eight to ten feet in front of them were two females walking into the housing complex, one of whom, Susan, was known to Gajewski. One of the males fit the description given by the dispatch.
The officers exited their vehicle and began to approach the four males from the rear. One of the males turned and looked at them, said something to the others, and three of the four males ran off through the courtyard. The three who ran did not fit the description of the juvenile as they were about eighteen inches shorter. Gajewski stopped the fourth male, later identified as the juvenile perpetrator, who had turned first one way and then the other as though he did not know where to go. The juvenile stated that he had nothing to do with it, he wanted to “get things right,” and agreed to respond back to the scene. Gajewski did not receive a description of a female perpetrator until afterwards. At the scene around 3:35 p.m., the juvenile was positively identified by Vega, who said he was 100 percent sure of the identification. The juvenile was arrested, transported to the juvenile bureau, charged with robbery and aggravated assault, and remanded to the Hudson County youth house.
The next witness to testify was Detective Alex Bermudez, who investigated the delinquent acts, seeking more victims and witnesses. He took a statement from Mendoza, who told Bermudez that he was in the immediate area to return his youngest daughter from school to their home. Mendoza saw a girl, later identified as Susan, drag a Philippine girl by the hair and then another girl pushed Susan away. Then he saw Terry running towards him, but Susan jumped her and tried to get her cell phone. Mendoza got out of his car and pushed Susan away. At that point, he saw “a guy” come from across the street, he turned his back and then he was grabbed and slammed to the sidewalk.
Mendoza related to Bermudez that his daughter Nancy was at the hospital and that she told him that she knew the girl who was responsible and that she went to school with another of his daughters. His daughter knew the girl by name and reviewed a series of photographs in his presence and then identified Susan. He related that this was the girl he saw drag the Philippine girl by the hair and assault and try to rob Terry. Bermudez did not ask Mendoza to describe the juvenile that crossed the street because he was investigating the involvement of Susan and the juvenile had already been arrested. As a result, Mendoza’s statement does not connect the juvenile to the assault on Mendoza.
Bermudez also interviewed Terry and Nancy, Mendoza’s daughter. Nancy told him that she was in her house, heard a commotion outside, and went downstairs to see what was happening. She saw “someone getting stomped” and saw Susan hitting him. As Nancy ran away, she saw Susan running away with a couple of girls. She had seen Susan earlier by the light rail with her cousin. Once the group disbursed, she saw that the victim was her father and she stayed with him until the ambulance arrived. She did not mention in her statement whether any males were present in the group. She later went to the hospital and told the detectives a couple of names, including Susan’s, and said that she was going to the open gym at a local school to try to find her. Nancy did so and alerted police who were driving by as to Susan’s identity and they arrested her. Again, because Bermudez was focused on identifying Susan as one of the perpetrators, he did not ask Nancy about the juvenile who had been arrested or any other males at the scene.
Detective McGhee testified that he took a statement from Vega, who indicated that two female juveniles were fighting and a man intervened in the fight. He stated that the male juvenile picked up the man and body slammed him. They all ran in different directions afterwards. Vega could not describe the female juveniles, but said that the male juvenile was not involved with the fight among the females, only with the man who intervened in the fight. He described the male juvenile as a “black male, five eleven, slim build, dark complexion.” Vega stated the male juvenile had been watching the fight. McGhee affirmed that Vega had identified the male juvenile at the scene and he again identified him at the juvenile bureau.
The last witness to testify on behalf of the State was Detective Jordan, who took a statement from Cruz. Cruz said that she was on Montgomery Street waiting for a bus when she saw a group of girls about to fight another girl. Cruz tried unsuccessfully to save Terry from the situation by pretending to be her aunt, but the girls began to push and curse at her. She then saw one of the girls punch Terry in the face while another pulled her hair. Cruz again attempted to break up the fight. Mendoza then jumped out of his car and helped her intervene, but a male in the crowd picked Mendoza up and threw him on the ground, after which “they” started to punch him. Jordan did not ask Cruz who “they” were. When Cruz tried to help Mendoza, he was unresponsive. Cruz positively identified the juvenile as the male who threw Mendoza on his head, both at the scene and at the juvenile bureau.
The last witness to testify was the juvenile, who admitted that he was on the corner across from the high school where he and his friend John’s brother, Joseph, were waiting for John. He noticed a big crowd of ten to fifteen boys and girls across the street. He started walking to see what was happening. Then he noticed Mendoza get out of his car and push Susan and he heard them exchange words. That made the juvenile mad; he crossed the street alone and told Mendoza to leave Susan alone because she was a little girl. He testified that they had been arguing about two minutes and it was pretty heated. Then he pushed Mendoza, who pushed him back. He testified they had no other physical contact. He did not pick him up and slam him onto the sidewalk. He did not trip him, kick him, or punch him. He simply walked away, crossed the street, left the scene with Joseph and walked home. Mendoza had not been injured at that point, but the juvenile did observe the crowd surround Mendoza and start hitting him.
The juvenile claimed that when he was arrested five minutes later, his friend Joseph was arrested as well. He and Joseph had each been wearing their school uniforms: black shirts and khaki pants. However, the juvenile testified that he had taken his black shirt off and put on a white shirt. He was also wearing a black hooded sweatshirt and was carrying the black shirt over his left shoulder. No one else was with him when he and Joseph were arrested. When they were both returned to the scene, Mendoza and Susan were gone. He never saw Susan after he first left the scene; she was not walking in front of him. He did see Vega at the scene while he was sitting in the police car. The juvenile testified that he knew Nancy from high school, but he did not see her at the scene and never spoke to her after this incident.
The juvenile’s attorney argued that the State’s motion for a waiver should be denied in light of the state of the evidence respecting the juvenile’s involvement in the robbery and assault even though all the State had to prove was probable cause that the juvenile had some participation in the occurrence of the alleged delinquent acts. Specifically, he argued that there was no evidence connecting the juvenile to the robbery, although he acknowledged that the aggravated assault was the bigger problem in terms of waiver. He asserted that no one could connect his client to the ultimate injuries and that there were multiple assailants. He also urged that the juvenile was acting as a Good Samaritan when he went to the assistance of Susan and sought to have the waiver application denied so that the matter could be resolved at the time of trial in the Family Part.
The State emphasized that the juvenile admitted that he was at the scene and involved in an altercation with Mendoza, and that Vega and Cruz corroborated this testimony and had immediately identified the juvenile without hesitation. It argued that probable cause had been established and the motion should be granted.
The judge concluded that Mendoza’s injuries could not have been caused just by the “body slamming,” although she had no expert testimony to support this conclusion, and observed that his own daughter said that a group of people were stomping him. The judge found that Mendoza’s injuries were consistent with someone being punched and kicked in the body and face while on the ground. Nevertheless, she found that a second-degree crime had been committed and that the juvenile participated in it.
However, the judge then noted that the testimony of the police officers was all hearsay except for their observations of Mendoza and the investigation seemed to her “as if they were just simply ready to wrap it up as quickly as possible.” Nancy did not identify the juvenile even though they knew each other, yet she identified Susan. The judge found that when the juvenile was picked up by the police he was not with Susan; they just happened to be going home to the same project. She also observed that when the police approached the group of four males, three ran away but the juvenile remained and answered questions. When the juvenile returned to the scene, he was identified by two people from another race and cross-racial identifications require greater care. She found that the show-up situation was inherently suggestive and he was wearing his school uniform, so he looked like other male students from his school. She noted that the State failed to produce the eyewitnesses at the hearing and subject them to cross-examination, which meant that she had only “bare bone statements.”
The judge stated that she was distrustful of the evidence and had “a lot of issues with some of the factors found applicable by the state” in seeking a waiver, including the juvenile’s nonviolent history. She determined that the juvenile testified credibly that he was there and that he intervened to assist a girl from his neighborhood, who was being assaulted by an older man. She found this conduct consistent with innocence, not guilt. She compared this testimony to the two incomplete hearsay written statements from two cross-racial witnesses and concluded that she did not have a well-grounded suspicion that the juvenile caused second-degree injuries to Mendoza. She also found that the juvenile had not participated in the robbery and there was no probable cause to believe that he did. She thus denied the referral motion and dismissed the complaint. This appeal followed.
The State raises the following issues on appeal:
POINT I – THE COURT ERRED IN DENYING THE STATE’S MOTION AND DISMISSING THE STATE’S CASE AGAINST A.W., BECAUSE PROBABLE CAUSE WAS ESTABLISHED.
POINT II – THE COURT ERRONEOUSLY CONCLUDED THAT PROBABLE CAUSE DID NOT EXIST BECAUSE: (1) THE IDENTIFICATION OF A.W., A BLACK MALE, WAS MADE BY TWO HISPANIC EYEWITNESSES; AND (2) HEARSAY TESTIMONY WAS USED TO ESTABLISH PROBABLE CAUSE. THE COURT’S DECISIONS THEREFORE, TO DENY THE STATE’S MOTION AND DISMISS THE STATE’S CASE MUST BE OVERTURNED.
The juvenile, on the other hand, argues that the denial of the motion should be affirmed because the statement of reasons supporting waiver and referral was not based on a meaningful analysis of the facts. He also asserts that the judge correctly denied the motion because the State failed to establish probable cause to believe that he was involved in the aggravated assault and robbery.
The scope of our review of a judge’s findings of fact is to determine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Johnson, supra, 42 N.J. at 162. On the other hand,
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[.]”)); see also State v. Brown, 118 N.J. 595, 604 (1990).
[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
We thus review the record to ascertain whether the judge’s findings are supported by substantial, credible evidence in the record and then apply the law to the facts de novo.
The Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, governs acts committed by juveniles that would constitute a crime if committed by an adult and provides for their rehabilitation within the juvenile justice system. However, when a juvenile is fourteen years old or older,
[o]n motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that . . . [t]here is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute . . . robbery which would constitute a crime of the first degree . . . [or] aggravated assault which would constitute a crime of the second degree . . . .2
[N.J.S.A. 2A:4A-26a.]
The Legislature has vested primary discretion in local prosecutors to determine whether to seek a referral to adult court. State v. J.M., 182 N.J. 402, 412 (2005) (“The intent was to increase prosecutorial discretion and to make waiver more likely in the case of . . . juveniles” committing a Chart 1 offense.).
Except for Chart 1 offenses, a juvenile has an opportunity to “show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, [in which case] waiver shall not be granted.” N.J.S.A. 2A:4A-26e. Because a juvenile sixteen or more years old has no such opportunity with respect to a Chart 1 offense, local prosecutors are required to follow the Attorney General’s guidelines in exercising their discretion to seek a waiver. Attorney General’s Juvenile Waiver Guidelines (Mar. 14, 2000) (“Guidelines“); R.C., supra, 351 N.J. Super. at 255 n.3.
The Guidelines contain both substantive standards a prosecutor must apply in determining whether to move for waiver to adult court of a charge of a Chart 1 offense against a juvenile over sixteen and procedural requirements a prosecutor must follow in making this determination. The substantive standards are a list of “factors” a prosecutor must consider in determining whether to file such a waiver motion: (1) nature of the offense; (2) deterrence; (3) effect on co-defendants; (4) maximum sentence and length of time served; (5) prior record; (6) trial considerations; and (7) victim’s input.
[R.C., supra, 351 N.J. Super. at 255.]
The prosecutor must prepare a written statement of reasons for waiver identifying the Guidelines factors supporting waiver. Ibid. The statement of reasons must be submitted to the juvenile and to the Family Part. Id. at 260. The decision to seek waiver is subject to judicial review. Id. at 258 (“[A] trial court’s review of a prosecutor’s statement of reasons to waive a juvenile complaint to adult court may be made summarily based on the court’s review of the written statement and other pertinent documentary materials.”). The scope of this judicial review is limited to “a patent and gross abuse of discretion,” similar to prosecutorial decisions to deny pretrial intervention (PTI). Id. at 259-60 (internal quotation omitted).
At a waiver hearing, “when a sixteen-year old or above is charged with a Chart 1 offense, the prosecutor need only establish probable cause for the court to waive the juvenile to adult court.” J.M., supra, 182 N.J. at 412. Once the State establishes the juvenile’s age and probable cause to believe that he committed one of the enumerated acts, “no additional showing is required in order for waiver to occur.” R.G.D., supra, 108 N.J. at 11-12 (also noting N.J.S.A. 2A:4A-26 creates a “presumption” of waiver for juveniles committing one of the enumerated offenses); State in re A.B., 214 N.J. Super. 558, 566 (App. Div. 1987) (presumption of waiver for Chart 1 crimes), aff’d, 109 N.J. 195 (1988).
Guilt or innocence is not at issue in a waiver hearing. State v. Lueder, 74 N.J. 62, 77 (1977). Rather, we have explained the proofs required in a waiver hearing as follows:
The occasion was not one for the trial judge to weigh the evidence and determine where the truth of the matter lay. As we said in State [in re] B.T., 145 N.J. Super. 268, 273 (App. Div. 1976) [(citations omitted)], certif. denied, 73 N.J. 49 (1977), the hearing
is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. The portion of the hearing relating to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involving the trial process are inappropriate. Since the result of a preliminary judicial proceeding as involved herein does not adjudicate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial.
[State in re A.T., 245 N.J. Super. 224, 227-28 (App. Div. 1991).]
Probable cause is a “well-grounded suspicion or belief” that an offense occurred and the juvenile “[was] party to it.” State in re A.J., 232 N.J. Super. 274, 286 (App. Div. 1989) (internal quotations omitted); State in re DeSimone, 60 N.J. 319, 322 (1972); State in re B.G., 247 N.J. Super. 403, 409 (App. Div. 1991); A.T., supra, 245 N.J. Super. at 227. It may be established through hearsay alone because the hearing “does not have the finality of trial.” State in re J.L.W., 236 N.J. Super. 336, 344 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991). It “need not be based solely on evidence admissible in the courtroom.” A.J., supra, 232 N.J. Super. at 286. The general definition of probable cause is applied “when considering whether probable cause has been established in a referral hearing.” J.L.W., supra, 236 N.J. Super. at 347.
Because the juvenile here was eighteen years old at the time of the waiver hearing, the State was only required to proffer its written statement of reasons for waiver and prove that probable cause existed to believe that the juvenile had committed the alleged delinquent act or acts. As to the former, the prosecutor explained in his written statement of reasons that Mendoza was a Good Samaritan who came to the aid of Terry when the juvenile crossed the street and slammed him onto the sidewalk, causing him to lose consciousness and suffer a facial fracture, broken wrist, and other injuries. The prosecutor described the nature and circumstances of the act, the juvenile’s role therein, and the potential and actual seriousness of harm to the victim. The prosecutor also relied on the need to deter the juvenile and others from violating the law. He identified the need for a lengthier term of incarceration under the criminal code and considered the juvenile’s three prior offenses, including resisting arrest. Finally, the prosecutor found applicable the likelihood of conviction and the potential need for a grand-jury investigation and considered the position of the victim regarding the waiver decision.
The juvenile contends that the statement of reasons was insufficient and should have been denied on that ground alone. He argues by analogy to PTI denials, which are subject to the same scope of review, that the statement did “no more than parrot in purely conclusory terms the language of the Guidelines” and is, thus, “no statement at all,” citing State v. Sutton, 80 N.J. 110, 117 (1979).
Although the statement of reasons in support of waiver could and should have been prepared in more detail, as Sutton requires of PTI denials, particularly with respect to the position of Mendoza, this issue is being raised for the first time on appeal.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available “unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.”
[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
This partially insufficient statement of reasons does not concern the Family Part’s jurisdiction nor does it concern a matter of great public importance. We therefore decline to address the issue. Ibid. Nevertheless, we note in passing that little elaboration was required with respect to deterrence and a comparison of the sentences that could be imposed under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, with those imposed under the Code of Juvenile Justice can readily be made by any lawyer or judge. Also, the juvenile’s three prior offenses, including a drug offense and a resisting-arrest offense, were known to the judge at the time of the hearing.
Turning to the issue of probable cause, the judge lost sight of the legal standard to be applied when she began making credibility determinations, weighing the evidence, and rejecting hearsay that alone was sufficient to establish probable cause. J.L.W., supra, 236 N.J. Super. at 344. Contrary to the judge’s conclusions, it is clear that the evidence gives rise to a “well-grounded suspicion or belief” that an offense occurred and that the juvenile “[was] party to it.” A.J., supra, 232 N.J. Super. at 286 (internal quotations omitted). Certainly, there is probable cause to believe that an aggravated assault on Mendoza took place; there is no suggestion to the contrary. There is also probable cause to believe that the juvenile “[was] party to it.” Ibid. (internal quotations omitted). The juvenile admitted to being at the scene and having a verbal and physical altercation with Mendoza. He was immediately and positively identified by Vega and Cruz as the juvenile who slammed Mendoza down on the sidewalk, even though the juvenile denied it. No more was required to establish probable cause and it was error to reject the hearsay evidence and conclude otherwise.
We find no other basis in the record for denying the motion for waiver and referral. Accordingly, we reverse and remand the matter to the Law Division for presentation of the matter to a grand jury and for subsequent proceedings. This remand is without prejudice to the juvenile’s right to move to dismiss the indictment if one is returned.
Reversed and remanded.
1 All of the juveniles involved in the events of March 17, 2008, have been given fictitious first names.
2 Additional offenses supporting waiver of Family Part jurisdiction include homicide other than death by auto, carjacking, aggravated sexual assault, sexual assault, kidnapping, aggravated arson, strict-liability drug-induced death, certain other offenses committed while a juvenile is in possession of a firearm, and certain serious drug offenses. See N.J.S.A. 2A:4A-26a(2). These are called “Chart 1” offenses. State in re R.C., 351 N.J. Super. 248, 249-50 (App. Div. 2002); see also State v. R.G.D., 108 N.J. 1, 11 (1987) (“Juveniles charged with the crimes of murder, robbery, sexual assault and similar serious offenses set forth in N.J.S.A. 2A:4A-26 are primary candidates for waiver to the adult courts.”).
Criminal Division cannot stop you from applying to PTI
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT DWAYNE GREEN,
Defendant-Appellant.
___________________________
Before Judges Lisa, Reisner and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel P. McNerney, Assistant Deputy Public Defender, of counsel and on the brief).
Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
REISNER, J.A.D.
Defendant Robert Dwayne Green pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and was sentenced to two years probation. He appeals from the October 23, 2007 final judgment of conviction, contending that he was improperly excluded from the pre-trial intervention program (PTI). See R. 3:28(g).
Following his indictment for three related third-degree CDS offenses, based on his alleged sale of $150 worth of cocaine to an undercover detective, defendant attempted to apply to the Monmouth County Vicinage Criminal Division for admission to PTI. However, he received a Notice of PTI Ineligibility dated January 23, 2007 from the Criminal Division Manager. The notice advised that his case had “been pre-screened by the Monmouth County Criminal Division” and that defendant would not be permitted to apply for PTI without the prosecutor’s written consent “in accordance with the guidelines for PTI outlined in” Rule 3:28.
The pre-printed notice checked off as the reasons for rejection: that defendant was charged with selling Schedule II narcotic drugs, an offense carrying a presumption of imprisonment; that the prosecutor had not joined in his application; and that defendant had not shown “compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable” (citing Rule 3:28, Guidelines 2, 3i and 3e). However, it appears from the record that the Criminal Division never actually permitted defendant to apply and therefore never considered the possible merits of such an application.
Thereafter, defendant corresponded with the prosecutor’s office, providing significant evidence of his rehabilitation during the period between the October 2005 incident on which the charges were based, and the January 2007 indictment. Stating that there was nothing “extraordinary” or “idiosyncratic” about defendant’s situation, the prosecutor declined to join in a PTI application. Thereafter, it appears undisputed that the Criminal Division never actually considered an application from defendant, but instead precluded him from applying at all without the prosecutor’s consent. On July 12, 2007, defendant filed a “Notice of Appeal from Pretrial Intervention (PTI) Rejection.”
From the transcript of the oral argument of defendant’s eventual PTI appeal, we discern that the Criminal Division’s practice had been to preclude a defendant charged with certain crimes from applying for PTI without a letter of agreement from the prosecutor’s office. While the judge indicated on the record that the system had been revised, because it allowed the prosecutor to, in essence, “short-circuit” a defendant’s right to even apply for PTI, it does not appear that Green had the benefit of any such change.
In response to defense counsel’s inquiry, the judge responded that defendant was “arguing for the ability to apply” to PTI. The judge confirmed that “if I grant the ability to apply, I’m not putting the defendant into the PTI Program. I’m then allowing the director [of the Criminal Division] to do a full evaluation” and make a recommendation. While acknowledging that defendant had not even been allowed to apply for PTI, the judge nonetheless rejected the appeal on the grounds that the prosecutor’s refusal to join in the application was not a gross and patent abuse of discretion. We conclude this was error.
We do not reach defendant’s appellate contentions concerning whether he should have been admitted to PTI. Instead, we reverse and remand this matter on procedural grounds, because we conclude that defendant was mistakenly deprived of the opportunity to apply for PTI.
It is clear from Rule 3:28 that the Criminal Division must at least allow a defendant to submit an application to PTI, and must evaluate the application:
Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager’s recommendation.
[R. 3:28(h).]
See State v. Brooks, 175 N.J. 215, 223-24 (2002).
The PTI Guidelines explicitly provide that all defendants must be permitted to apply, and the Criminal Division Manager must consider the merits of the application:
Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines . . . the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant’s amenability to the rehabilitative process, showing compelling reasons justifying the defendant’s admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.
[R. 3:28, Guideline 2 (emphasis added).]
Guideline 3(i) does provide that defendants charged with the sale of Schedule I or II narcotic drugs “should ordinarily not be considered for enrollment” in PTI unless the prosecutor joins in the application. However, this does not mean that such defendants can be denied the opportunity to apply in the first place.
Guideline 3(i) further provides that even “in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant’s amenability to the rehabilitation process . . .” Ibid. (emphasis added). See also Pressler, Current N.J. Court Rules, Official Comment on Guideline 3(i) to R. 3:28 (2009). While the prosecutor has enormous influence over a defendant’s admission to PTI, the Criminal Division Manager cannot short-circuit a defendant’s statutory right to apply for PTI, even if the application is unlikely to receive a favorable recommendation.1
We gather from the record that the Monmouth Criminal Division changed its procedures to recognize these principles, but this defendant did not have the benefit of the new procedures. Because defendant was not given the opportunity to make his application to the Criminal Division Manager, we reverse the order on appeal and remand to permit defendant to submit his PTI application to the Criminal Division Manager, who shall consider the application on its merits.
Reversed and remanded.
1 As illustrated in State v. Negran, 178 N.J. 73, 78-79 (2003), there will be times when the Criminal Division Manager supports a defendant’s admission to PTI, while the prosecutor opposes it; the prosecutor’s views do not always prevail. Id. at 83-85.
Robert Higbee – Trial on May 12th
A few quick thoughts on the trial for the 12th. I have to agree with the commentators who have questioned why Robert Higbee’s attorney, William Subin, got into it with Michael Taylor, a young witness and victim. Once again, I note that it is easy for me to judge another attorney’s tactics and performance from the comfort of my couch.
That being said, the first thing that continues to jump out at me is Mr. Subin’s continued use of open-ended questions. I think he has been burned several times. You have to keep some ammo for summation. Make your point and move on. Any young attorneys or law school students reading this should really look into Pozner & Dodd’s cross examination books and materials. I see no chapters here and no real focus. My favorite question, “what is the difference between a muskrat and a opossum?”. Huh?
I can’t hammer this point home enough. You never want to let the witness explain anything. Ask a question and move on. You never want to end with, So then, how could you have… In fact, the witness should not know where you are going. For example, one issue in the case is how dark the area in the intersection was. You want to bring up facts. No street light. Time of night. Lack of other lights. Desolate road. Etc. You don’t want to follow that up with “so, then how could you have seen this or that”. You bring up all of those points and establish that it was very dark. You won, move on.
Another issue is that you do not have to fight with every witness. I was in a homicide case last year. More than half of the witnesses were not hostile. As a result, they were very comfortable with me and it was a smooth, easy cross. With two witnesses, DNA and ballistics, the witnesses were so cool with me, that I made it a point to shake their hands (in front of the jury) as they left the stand.
In the Higbee trial, Mr. Subin seemed to spar with Michael Young. There is really no reason for that. While you want to defend your client with everything you have, you need to balance that against turning the jury against you as that will not help your client.
I also would like to know why the Prosecutor focuses on questions such as where do you live, with who, where do you work, etc, etc. Who cares? If you really want to inflict some damage, focus on the real evidence. Otherwise, the jury will forget most of what was said. Of course, all of this is rhetorical as most prosecutors have the exact same pattern no matter where you go. They are taught this way of questioning but I’ve never heard a real reason behind it. If the witness is nervous, a few easy questions is ok but not many.
Where’s the bargain?
As I’m sitting in Domestic Violence court fighting to get my client’s guns back, I’m watching a large group of people enter pleas to violating a restraining order. Funny thing is, the plea arrangement is the exact same thing they would get if they went to trial and lost. In other words, they are giving up their rights and the chance to play with the house’s money since they have nothing to lose. Why would anyone do that?
The answer is easy, belly-up attorneys. Too many attorneys see this profession as an easy way to make a little money instead of a profession where we are defending people; no, more like fighting for people. Whenever I get a deal like that, I ask the prosecutor, “so if my client went to trial and lost, he would get the same thing?”. The reply is always yes. I then say “why would my client pay me to get the same thing that he could get on his own?”. There is never a good answer to that question.
Of course, they only make that offer because many attorneys advise their clients to take it. Even if you have no shot, why not go to trial, have some fun and make everyone work for it. And hey, you never know who will not show up, forget something, make a mistake, etc. If your attorney is not fighting for you, it is time for a sit down with him or her or possibly time to get a new attorney before its too late.
Robert Higbee trial – May 11th, a few hours of Charlie Brown’s teacher
I’m not sure if it is the cameras or if these lawyers, like many others, like to hear themselves talk. I am of the Pozner and Dodd school of cross examination. So when I evaluate a cross examination, I think about what they would do.
I was rather surprised at Higbee’s attorney’s use of open-ended questions and compound questions that sometimes confused the witness on the stand. I also thought that his cross was a bit out of order as it took him a while to get into some important aspects. By that time, the jury may be asleep.
I think the Prosecutor did an even worse job on direct. I really don’t see where he was going except on and on with the first witness of the day (the first State Trooper on the scene). Again, after a few minutes of that, all the jury hears is Charlie Brown’s teacher.
You have only a few minutes to get the jury’s attention. This case is fairly simple. Was he reckless or was this an accident? There are only so many issues that need to be addressed. Thus, there is no reason for the first witness to be on the stand for several hours. At this rate, this trial will be going on forever. Asking less questions may yield better results.
I guess everyone has their own style, but mine is a quick, hard hitting cross examination that is very surgical. I also try to use inflection in my voice instead of a slow, monotone voice. I believe this helps the jury pay attention in numerous ways. After all, when we speak to each other, we have a lot of inflection in our voices.
I do want to point out that there is no one way to win a case. However, I do think that there is only one way to really cross a witness. Of course, I’ve never had a case thatwas featured live on national tv, so who knows how I would react under this situation huh? I’d like to think it would be no different. Emphasis on “like to think”.
How not to have a witness exonerate you
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH T. MANSFIELD,
Defendant-Appellant.
___________________________________
PER CURIAM
Defendant Keith T. Mansfield appeals from an order dated July 2, 2008, denying his PCR petition as untimely under Rule 3:22-12(a). We reverse and remand for further proceedings.
Defendant pled guilty on July 10, 2000 to third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. He was sentenced to probation on September 15, 2000. He filed his PCR on May 22, 2008.
The petition was based on a March 20, 2008 certification, purportedly from the victim, now an adult, in which she attested that defendant never in fact molested her. Instead, she claimed that her mother fabricated the story of the alleged molestation as part of a custody dispute with her father, defendant’s employer. The PCR was denied without oral argument, and the PCR judge issued a very brief letter opinion dated July 2, 2008, noting only that the application was untimely.
On this appeal, defendant contends that he was unfairly denied a hearing on his PCR and he should be permitted to withdraw his plea based on evidence of his actual innocence. The State vigorously opposes the appeal, arguing that defendant did not submit a certification to the PCR judge attesting to his innocence, and that the victim’s certification is suspect. The State notes that the purported certification is not in legally proper form; it does not indicate where it was signed; and the signature bears no resemblance to the victim’s signature on several statements which she signed in 1997 when she made the original accusation.
Based on our review of the record, the State certainly has a colorable argument. The signatures on the documents do appear to be different. The victim’s statement is not in proper form either as an affidavit or a certification. “Knowledge and belief” is not the correct language for a certification; there is no indication as to where the witness signed the document; and the document is not properly notarized. See R. 1:4-4. Nonetheless, we cannot conclude that this application, concerning as it does a claim of innocence, should have been rejected summarily on timeliness grounds, without considering the merits or even giving defense counsel an opportunity to argue the application.
As the Supreme Court recently clarified in State v. Slater, 198 N.J. 145, 157-58 (2009), one of the significant factors to be considered in a motion to withdraw a guilty plea is whether defendant makes a claim of innocence:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Ibid. (emphasis added).]
Moreover, “[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim.” Id. at 158. In evaluating the claim of innocence, the court may consider the evidence that was available to the prosecutor at the time the plea was entered. Ibid. And “efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons.” Id. at 160.
We agree that the application was deficient because defendant did not submit a certification attesting to his innocence and explaining why he nonetheless entered a guilty plea. Moreover, the victim’s statement was not in proper form. However, if the court had allowed oral argument, defense counsel might have sought an opportunity to supplement the application to address these issues. In the interests of justice, we reverse the denial on timeliness grounds and remand this matter to the trial court for further proceedings.
O n remand, defendant must be given an opportunity to file a certification attesting to his innocence and explaining the reasons why he entered his guilty plea. He must also have an opportunity to submit a further statement from the victim in legally proper form. If he satisfies these requirements, the court should hold a testimonial hearing which shall include, at a minimum, testimony from the victim.
Reversed and remanded.
Conviction of founder of Epi-Genesis Pharmaceuticals upheld
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN NYCE,
Defendant-Appellant.
________________________________
May 7, 2009
Submitted: September 24, 2008 – Decided:
Before Judges Fisher, C.L. Miniman and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0234.
Jonathan W. Nyce, appellant pro se.
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jonathan Nyce appeals from the September 22, 2005, Judgment of Conviction and Order for Commitment after a jury found him guilty of the second-degree passion-provocation manslaughter of his wife, contrary to N.J.S.A. 2C:11-4b(2), and fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1).1 Defendant was sentenced to seven years in prison for manslaughter and to a consecutive one-year term for evidence tampering. We affirm.
I.
Defendant, a scientist with a doctorate, was the founder and chief executive officer of Epi-Genesis Pharmaceuticals. He had been married to his wife Michelle for twelve years prior to her murder. They had three children, ages twelve, ten, and five, and lived in a large home in Hopewell Township. In 2001 and 2002, the Nyces hired a landscaping firm to do some work at their home and in 2002 one of its employees, Miguel de Jesus, knocked on the door to inquire about the bill and met Michelle. They exchanged cell phone numbers, communicated frequently thereafter, and then began a sexual relationship.
Defendant learned of the affair in July 2003, and called de Jesus, leaving a message to stay away from his wife or he was “a dead man.” That month, defendant contacted the FBI claiming that de Jesus was trying to extort money from him. The FBI referred the matter to defendant’s local police department, which interviewed defendant. He claimed that he received two phone calls on July 10, 2003, seeking to extort $500,000 in exchange for a tape recording of Michelle having sex with someone. The police could not trace the calls back to de Jesus and, after having several conversations with defendant and Michelle, the investigating officer, Daniel McKeown, concluded the charges were unfounded and refused to take any action. Defendant then signed a harassment complaint against de Jesus. It was conditionally dismissed if de Jesus refrained from contacting defendant and Michelle for two years. De Jesus and Michelle resumed their sexual relationship a few weeks later.
On Thursday, January 15, 2004, Michelle arranged to meet de Jesus at 9:15 p.m. after she finished work at Macy’s. After meeting, they drove to Hamilton Plaza and left Michelle’s Toyota Land Cruiser and de Jesus drove her to the Mount Motel in Lawrenceville. After engaging in sexual relations, they took a shower and Michelle got dressed and put on some perfume. De Jesus drove her back to get her car and she left. He drove to a bar and had a few drinks before he went home to make his live-in girlfriend believe that he had been out drinking.
At 6:58 a.m. the next morning, Hopewell Police Officer Lincoln Karnoff was dispatched to defendant’s home on a report from an alarm company that the basement burglar alarm had been activated. The day was very windy and there were snowdrifts on the driveway because it had snowed the day before. Karnoff noticed tire tracks on the lawn. He walked around to the basement French doors, which were at ground level, but determined that there were no signs of attempted entry.
Around the same time, Public Service Electric & Gas Company employee Richard Archer saw a Land Cruiser, with its engine running, resting against an embankment on Jacob’s Creek Road. He did not immediately investigate, but after breakfast, he told the driver of the PSE&G vehicle, Chuck Black, to pull over. Archer walked down the embankment and saw a woman inside the car slumped over on a pillow with her eyes open. He noticed footprints going away from the car and across the ice on the creek and up the other side. He also noted minimal damage to the vehicle and frozen blood on the running board. Black alerted authorities.
Various Hopewell police officers responded to the scene. In addition to the observations made by Archer, they saw blood on the exterior of the rear driver’s side door. Photographs and a cast impression were taken of the footprint next to the passenger side of the vehicle. A Division of Motor Vehicles search revealed that the vehicle was registered at defendant’s home, which was located nine-tenths of a mile from the scene.
Sergeant Michael Cseremsak and Officer Michael Sherman went to defendant’s house at 9:13 a.m., walked through a single, open, garage door, and knocked on the door from the garage to the house. Two children answered and said neither of their parents was home, but that their dad, who had taken their brother to school, would be home soon. The officers waited in their police car until defendant, appearing disheveled, drove up. Cseremsak told him that they needed to talk and asked if they could come in. Defendant agreed and drove up the driveway and parked in front of the house, simultaneously closing the open garage door. They all entered through the front door.
Cseremsak advised defendant that the Land Cruiser had been in an accident. Defendant said that his wife used that vehicle and he asked how she was and what hospital she was in. Instead of responding, the officers asked defendant when he last saw her. Defendant responded that she was supposed to work from 6:00 p.m. until 10:00 p.m. and then go out with a friend. She had told him she would be home by 1:00 a.m., but he knew from experience that she would not get home until later and sometimes did not come home until the morning.
Cseremsak excused himself and called his supervisor, Lieutenant Frank Fecher, and told him about defendant closing the garage door when he arrived at the house. By this time, Michelle had been definitely identified at the scene by McKeown, so Fecher told Cseremsak that he believed the dead woman was defendant’s wife, to tell defendant the news, to Mirandize2 him, and to take a statement. Defendant was not a suspect at this time. After Cseremsak advised defendant of his rights, defendant said that he understood them and stated he was not under the influence of drugs or alcohol. Defendant did not appear upset when Cseremsak said Michelle was dead. Cseremsak asked him if she had been seeing anyone, and defendant said she had. He again claimed her boyfriend had tried to extort money from him.
After checking the basement for signs of an intrusion, which defendant permitted, Cseremsak and Sherman left the house and waited outside in a police car until McKeown and Mercer County Prosecutor’s Detective Sergeant Karen Ortman arrived at the house at approximately 10:45 a.m. McKeown and Ortman went to the front door and told defendant’s daughter that they would like to speak to defendant, but they had to wait fifteen minutes before he responded. When defendant opened the door, his hair was a mess, his clothes were wrinkled, and he was wearing no shoes or socks. McKeown asked defendant to come to the station to give a statement and defendant agreed, accepting McKeown’s offer to drive him to the police station. On the way, defendant stated that de Jesus’s “wife” had to be involved in Michelle’s death.
For two-and-a-half hours at police headquarters, McKeown asked defendant questions while Ortman typed his improbable answers. Defendant recounted the previous summer’s extortion attempt and added that Michelle told him that de Jesus had made threats against him. He alleged that de Jesus called him once screaming he was “going to kill the bitch.” He also claimed that Michelle told him that de Jesus’s girlfriend had sent her “nasty” text messages. He asserted Michelle told him that she needed a new car because “people” were following her from work and that she suspected it was de Jesus or one of his friends.
At one point, defendant said that he wore a size twelve shoe.3 McKeown noticed some small cuts on defendant’s hands, which he agreed to have photographed. Defendant permitted buccal swabs for DNA comparison. After the interview, McKeown drove defendant to his son’s school to pick him up. On the way, defendant said that he really had thought things were going to work out, but admitted that he and his wife fought about her moving out of the house. McKeown asked when they last had that conversation, and defendant replied, “Last night.”
Meanwhile, State Trooper Geoffrey Noble made a number of compelling observations that led him to conclude that Michelle’s death was not consistent with an automobile accident. When Mercer County Medical Examiner Raafat Ahmad arrived at the scene at about 6:16 p.m. on the day of the murder, she too concluded, based on the injuries to the victim’s forehead, that the “accident” had been staged. The body was then removed from the Land Cruiser and taken to the Medical Examiner’s office, where, at 7:25 p.m., Ahmad viewed the victim’s body, which reinforced her opinion that the injuries were not the result of a car accident.
Based on these observations and defendant’s statements, police believed it was likely that Michelle had been killed at her home. At about 8:30 p.m., a team of state and municipal officers went to defendant’s home and asked him to vacate it pending the issuance of a search warrant. Defendant asked to call a lawyer and did so, leaving a message when he was unable to reach the lawyer directly. The police did not question him at this time. Defendant took a few personal items and left the home; he was not permitted to take his cell phone. Defendant gathered his children from the home of a friend and told her that he was taking the children to his parents’ home in Collegeville, Pennsylvania. The next morning, the friend read the local newspaper, which suggested Michelle’s death was a homicide, and called defendant to read the article to him.
On Saturday, January 17, 2004, Ahmad performed an autopsy on Michelle, who had three deep, gaping lacerations to her forehead, an extensive skull fracture, and massive intracranial hemorrhages caused by excessive force. She had multiple other internal and external injuries, including defensive wounds. From the froth that had developed in Michelle’s lungs, Ahmad determined that she had lived for ten minutes after the trauma had been inflicted. The cause of her death was massive blunt-force trauma to the head, fractures of the skull, contusions of the brain, and intracranial bleeding.
Police obtained a warrant at 10:30 a.m. Saturday morning for a search of defendant’s home.4 However, they did not have enough staff to execute the search warrant until 6:00 p.m. that evening. The house had seventeen rooms plus a full basement, attic, and three-car garage. New Jersey State Police Detective John Ryan processed the garage. He found Michelle’s blood on the rail and doorjamb of the door from the garage to the house and her blood was spattered on a snow blower, wet vacuum, and a recycling bucket in the garage that contained a bloody sock. There were bloodstains on the garage floor that someone had attempted to clean. There was also a partial, bloody footprint in the garage. Soaking wet, large pajama pants were found behind a couch in an upstairs office and reddish-brown water was found in the washing machine.
On Sunday morning, January 18, 2004, defendant voluntarily returned to the Hopewell police station. In the presence of McKeown, State Police Detective Sergeant William Scull again advised defendant of his Miranda rights; he signed a Miranda waiver form and denied being under the influence of medication or alcohol. Scull said they did not believe that Michelle’s death was an accident, and that the evidence implicated him. Defendant said that “maybe it would be best for [him] to get an attorney if he was a suspect.” Scull said that defendant was a suspect and he should decide whether he wanted an attorney. Defendant then said he did not want an attorney.
Defendant told Scull that he should be looking at de Jesus and his “wife” based on Michelle’s affair and the alleged extortion attempt. He claimed that Michelle was so afraid of de Jesus’s wife that she had disabled the light bulbs in the garage so she could not be seen in it. Scull replied that this story did not make sense. Defendant then asked whether he should obtain the opinion of an attorney regarding his theory of the murder. Scull told him that he could not give him any advice and asked him what he wanted to do. Defendant asked if he could go home and think about it, but Scull told him that there was probable cause to arrest him and that he was not free to leave. Defendant again said that he did not want an attorney. Defendant offered to make an incriminating statement in exchange for a short jail term so he could take care of his children. Scull refused to bring such a suggestion to the prosecutor and for the third time asked whether defendant wished to exercise his constitutional rights. Defendant said, “No.”
Defendant’s demeanor became deflated and he grew quiet. Defendant repeatedly said, “I did not kill my wife.” Scull asked him to define “kill,” to which defendant replied, “Shoot, stab, or choke.” Scull replied defendant could not convince him that he was not involved in Michelle’s death and asked, if defendant were in Scull’s place, whether he would believe his denial. Defendant replied, “Probably not.”
At 10:24 a.m., Captain George Meyer interrupted the interview and called Scull out of the room. Defendant’s brother, Michael Nyce, who was at the police station, had received a phone call from Lee Engleman, the attorney whom defendant had called Friday evening. Engleman had told Michael that he wanted defendant to call him and asked Michael to tell him to stop talking to the police. Michael wrote Engleman’s number on a piece of paper and related Engleman’s instructions for defendant to the police. Meyer conveyed the information to Scull and handed the piece of paper to him. Scull returned to the interview room and told defendant that Engleman had called and wanted him to return the call. He put the piece of paper with the phone number on the table in front of defendant and told him that Engleman would probably tell him not to talk to the police. Scull told defendant for the fourth time that he needed to make a decision, and defendant pushed the paper away and said he wanted to be helpful and did not want to call Engleman.
Scull asked defendant what was stopping him from giving his version. Defendant became quiet for a while and then said he wanted to know whether Michelle had been with de Jesus the night she died. Scull said she had been. Defendant became somewhat emotional and asked how he could be sure that Scull was telling the truth. Scull said it was up to him to determine whether he was being honest, but he added he knew defendant had called Michelle on her cell phone, she had turned it off, and she had doused herself in perfume before she came home. Upon hearing this, defendant stated, “I didn’t mean to kill her.”
In an unrecorded statement, defendant explained that the children tried to call their mother before they went to sleep, but the call went to voice mail. He then took lorazepam and went to sleep. He woke up at midnight and called Michelle’s cell phone, but it again went to voice mail, and he went back to sleep. He was awakened at 2:00 a.m. by the sound of car tires crunching on the snow outside. He went to the garage to talk to Michelle because he suspected that she had been with de Jesus. He claimed he got to the garage before she got out of the Land Cruiser. When she opened the car door, he stood in the space created by the open door and asked where she had been. She refused to answer and defendant claimed she tried to attack him with a stiletto shoe. He grabbed her hand, put his other hand on her back, and pushed her onto the garage floor. He heard a “thunk” and she started to bleed profusely from her head. He claimed he went inside to get some compresses and, when he returned, she was on her stomach on the floor with the shoe still in her hand. He knelt on her back and she started to “flail” in an attempt to assault him with the shoe. He pushed her head down, again hitting her forehead on the floor; then she went motionless. After finding no pulse, defendant realized his wife was dead. Thereafter, he explained how he faked the car accident and what he did to clean up and hide the evidence.
After explaining these events, defendant agreed to give a taped statement. He asked for a pen and paper to write down some thoughts, and Scull gave them to him. Scull then left the room to relay what he had learned that was pertinent to the search, which was to resume that day. At 12:03 p.m., defendant began his taped statement, and it lasted until 1:48 p.m. Additional hidden evidence was later retrieved from defendant’s home based on the information he provided.
II.
On December 7, 8, and 9, 2004, the judge assigned to the case heard testimony bearing upon defendant’s motion to suppress certain evidence. He denied that motion in a written opinion filed January 10, 2005. In March 2005, the court conducted a Miranda hearing in response to defendant’s motion to suppress the various statements he made to police. The judge also denied this motion in a written opinion filed May 9, 2005.
The judge made findings of fact and reached conclusions of law in accordance with the requirement of Rule 1:7-4(a). The judge determined that the statements made by defendant as he traveled to and from the police station on Friday, January 16, 2004, were unsolicited and not the product of any interrogation. Defendant was not in custody at the time as he was free to refuse to go to the police station and was free to use his own car to go there if he wished. The judge concluded that any statements made during this time were admissible at trial because there was no custodial interrogation. The judge also found that the formal, written statement defendant gave to the police that day was also not the product of any custodial questioning. As a result, he concluded there was no obligation to advise defendant of his Miranda rights.5
Next, the judge addressed defendant’s interaction with his attorney, Engleman. The judge rejected defendant’s claim that his attempt to reach Engleman on Friday constituted an assertion of his Miranda rights, thereby precluding any further questioning by the police thereafter. He also rejected defendant’s claim that his efforts to call Engleman before he returned to New Jersey constituted such an assertion of his right to remain silent and to secure the advice of counsel. In any event, the judge observed that defendant was again advised of his Miranda rights after he voluntarily returned to the police station on Sunday morning.
The judge then turned his attention to the claims made by defendant respecting the events that Sunday, beginning with his arrival at the police station. He found that defendant was immediately advised fully of his Miranda rights, acknowledged that he understood them, read and signed the waiver form, and represented that he was not under the influence of drugs or alcohol. Only then did the interrogation begin. The judge found that defendant was in custody at that juncture, concluded that defendant had been appropriately warned of his rights, and the subsequent questioning did not violate any of those rights.
Turning to defendant’s first statement that “it may be best for [defendant] to obtain counsel if the police thought he was a suspect,” the judge concluded that this was an equivocal request for counsel, triggering a duty on the police to stop questioning and make the further inquiry required by State v. Harvey, 151 N.J. 117, 221 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Scull did so, telling defendant that he could not give him advice and that the decision was his to make. The judge concluded that defendant, without any coercion at that time, gave a knowing, intelligent, and voluntary waiver of his rights. He employed the same analysis and reached the same conclusion with respect to defendant’s subsequent queries about obtaining the opinion of an attorney regarding his theory of the murder, requesting to leave the police station, and to work out a deal. In any event, the judge concluded that none of these inquiries constituted an invocation of the right to remain silent and determined that all statements made through this point in time were admissible.
The judge’s penultimate findings related to the efforts of Engleman to contact defendant and the response of the police to those efforts. He found that the police were required to inform defendant that Engleman was available to represent him and had asked defendant to call him. He further found that the police delivered Engleman’s message minus the exact instruction not to speak to the police, although Scull did tell defendant that it was likely that Engleman would tell him “not to talk to them.” The judge concluded that the essence of the message had been delivered, that defendant had all the information required to decide whether he wanted his attorney present, and knowingly, voluntarily, and intelligently decided to proceed without counsel when he pushed away the note with Engleman’s telephone number and said he “did not want to call an attorney just yet.”
Last, the judge found defendant was again advised of his Miranda rights before giving his tape-recorded statement and he knowingly, voluntarily, and intelligently waived them. He concluded the statement was admissible and “the Sixth Amendment did not attach at any point in time [defendant] was questioned at the Hopewell Township Police Station by Det. Scull.” After the subject motion was denied, the matter was tried by a jury.
On November 22, 2005, defendant filed an untimely notice of appeal following his conviction, but on December 20, 2005, we granted leave to appeal out of time. After a remand hearing, the judge determined that defendant voluntarily, knowingly, and intelligently waived his right to appellate counsel and permitted him to litigate his appeal pro se.
III.
Defendant raises the following issues on appeal:
POINT I – DENIAL BY TRIAL JUDGE OF RIGHT TO EFFECTIVELY CROSS EXAMINE AND IMPEACH STATE WITNESSES, AND TO PRESENT WITNESSES FOR THE DEFENSE, PERMITTED ONLY PROSECUTOR’S VERSION TO BE PRESENTED TO JURY.
POINT II – TRIAL COURT IMPROPERLY BOLSTERED STATE WITNESS AS EXPERT: SUCH BOLSTERING LED TO THE ADMISSION OF CLEARLY FALSE EVIDENCE.
POINT III – DUE TO STATE’S UNCONSTITUTIONAL SEIZURE AND SEARCH, APPELLANT’S MOTION TO SUPRRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT IV – DUE TO VIOLATIONS OF APPELLANT’S FIFTH AND SIXTH AMENDMENT RIGHTS, APPELLANT’S MOTION TO SUPPRESS STATEMENTS SHOULD HAVE BEEN GRANTED.
POINT V – TRIAL COURT MADE ERRORS IN JURY CHARGE.
POINT VI – TRIAL COURT’S DEMEANING OF DEFENSE COUNSEL TAINTED JURY.
The scope of our review of a judge’s findings of fact on a motion to suppress is limited. “We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.” State v. Barone, 147 N.J. 599, 615 (1997). We only determine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Johnson, supra, 42 N.J. at 162 (citations omitted).
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that most of defendant’s arguments “are without sufficient merit to warrant discussion in a written opinion.” R. 2:11-3(e)(2). Those arguments are contained in defendant’s Points I, II, III, V, and VI, although we make the following brief comments:
With respect to the judge’s evidence rulings as to which defendant charges error in Point I, such determinations are committed to the sound discretion of the trial judge. E.g., Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), certif. denied, 103 N.J. 465-466 (1986). We have carefully reviewed the many evidential issues raised in this appeal, some of which significantly mischaracterize the record, and find no abuse of discretion in the judge’s various decisions either admitting or rejecting evidence. Furthermore, the alleged errors were all harmless in light of the overwhelming evidence of guilt.
In Point II defendant claims that the footprint analysis did not require the testimony of an expert and the judge’s qualification of the expert improperly bolstered his testimony. It is clear from the expert’s testimony that footprint analysis is a distinct area of forensic science beyond the ken of the ordinary juror. This determination, too, was committed to the broad discretion of the trial judge, State v. Johnson, 120 N.J. 263, 294 (1990), and we find no abuse of that discretion.
Defendant’s complaint in Point III about the seizure of his home pending issuance of the warrant is also without merit. “Different interests are implicated by a seizure than by a search.” Segura v. United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 3386, 82 L. Ed. 2d 599, 609 (1984) (citations omitted). “A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Ibid. (citations omitted). As a result, “warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant” have been approved. Ibid. (citations omitted). That is all that occurred here. Defendant’s constitutional rights were not violated by this seizure in any of the myriad respects that he asserts on appeal, all of which lack merit.
As to defendant’s contention in Point III that there was no probable cause to issue a warrant to search his home, there was an abundance of such evidence. The police had a reasonable basis to believe that Michelle was murdered and that her body was transported to the scene of the staged accident. The footprints leading away from the passenger side of Michelle’s vehicle eventually led to the vicinity of defendant’s home where there were tire tracks in the snow on the lawn. Michelle had been having an affair and threats had been made. Defendant had fresh scratches on his hands and admitted to an argument with Michelle the evening before the murder. His action in closing the garage door on Friday was also suspicious. “Probable cause exists if at the time of the police action there is ‘a “well grounded” suspicion that a crime has been or is being committed.'” State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Probable cause certainly existed here for the search conducted pursuant to a properly issued warrant.
With respect to defendant’s claim in Point V that it was error to charge the jury on self-defense, “[t]he trial judge must charge the jury on self-defense ‘if there exists evidence in either the State’s or the defendant’s case sufficient to provide a “rational basis” for [its] applicability.'” State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (quoting State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.), certif. denied, 144 N.J. 589 (1996)). At trial, defendant contended that Michelle accidentally fell from the Land Cruiser and was killed while she was trying to attack him. However, in his statement to police, which went into evidence, defendant claimed that Michelle attacked him and, to protect himself, he threw her down too hard and, when she tried to get up, he pushed her back down and she died as a result. Thus, the judge was required to give a self-defense charge in light of the evidence, even though he did not claim self-defense at trial. Id. at 70.
Finally, with respect to Point VI, we have carefully reviewed each of the half-dozen exchanges between the court and defense counsel and note that most of them were at sidebar. It was a hotly contested case in which defendant’s counsel put in a vigorous defense, occasionally ignoring judicial rulings and refusing to move on when objections were sustained. The occasional repartee over this twenty-one-day trial was often in jest and did not prejudice defendant. It does not remotely approach the level for requiring a new trial.
IV.
In defendant’s Point IV, he argues, based on various alleged violations of his Fifth and Sixth Amendment rights, his several statements to police should have been suppressed. The Fifth Amendment privilege against self-incrimination is binding on the states under the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964). The New Jersey Constitution has no direct counterpart, but the privilege “is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence,” In re Martin, 90 N.J. 295, 331 (1982) (citations omitted).
The privilege is not self-executing under either federal or state law and must be invoked to claim its protection. State v. P.Z., 152 N.J. 86, 101 (1997). “Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary.” Ibid. However, an exception to this rule was created for custodial interrogation because it is inherently coercive and automatically triggers the Fifth Amendment privilege against self-incrimination. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. A person in custody must be advised of the right to remain silent and warned that any statement may be used against that person. Ibid. Such a person must also be advised of the right to an attorney and, if he or she cannot afford an attorney, advised one will be provided. Ibid.
Absent Miranda warnings, statements made by a defendant while in custody, whether exculpatory or inculpatory, may not be used in the prosecutor’s case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986). “Custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. “The rights set forth in Miranda are not implicated ‘when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation[.]'” State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998).
Defendant contends that he was in police custody from the moment he was advised of his Miranda rights on Friday morning until he exercised his right to call Engleman that evening. He asserts that he was not free to leave the police station “unless he was willing to walk miles in freezing temperatures back to his home.” He urges that none of the statements he made while he was transported to and from the police station and while he was there were admissible in evidence. However, the judge made a finding of fact that defendant was never in custody during this time, there is substantial evidence in the record to support this fact finding, and we are thus bound by it. Johnson, supra, 42 N.J. at 162. Because he was never in custody on Friday, his Miranda rights could not have been violated. See Smith, supra, 307 N.J. Super. at 9; see also Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); State v. Lacaillade, 266 N.J. Super. 522, 527-28 (App. Div. 1993).
This is also true of any statements defendant made later when the police arrived at his home and told him to leave. Not only was defendant not in custody, but police allowed him to travel to his parents’ home in another state. His attempt to reach Engleman at that point did not preclude any questioning by the police that evening because an “anticipatory invocation of [the] right to counsel is ineffective outside of the custodial interrogation setting.” State v. Boretsky, 186 N.J. 271, 284 (2006) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S. Ct. 2204, 2211 n.3, 115 L. Ed. 2d 158, 171 n.3 (1991)).
Defendant also argues that the police impermissibly interfered with his Sixth Amendment right to counsel when they evicted him from his home and took his cell phone, which prevented counsel from getting in touch with him. “The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel.” Davis v. United States, 512 U.S. 452, 456-57, 114 S. Ct. 2350, 2354, 129 L. Ed. 2d 392, 369-70 (1994). In any event, defendant was free to leave a telephone number where Engleman could reach him, and in fact he did so the next day, instructing Engleman to call him at his parents’ home. The police never prevented the attorney from reaching defendant, who, again, was not in custody until Sunday morning and had no right to counsel until then. Ibid.
Defendant’s major contentions revolve around the events on Sunday when he was in custody and Engleman tried to contact him. It is undisputed that he was advised of his Miranda rights, signed the Miranda waiver form, and repeatedly waived his rights thereafter. However, defendant claims that his will was overborne and he was “rendered insensible” by the combination of the following factors: (1) withdrawal from Wellbutrin and use of Ativan that blocked his memory;6 (2) refusal of police to acknowledge his claims of innocence; (3) refusal of police to acknowledge his repeated requests for counsel and his right to remain silent; (4) presentation of false evidence to him, such as the footprint size leading to his house; (5) “presentation of a way to avoid being taken from his children forever: convincing the[ police] that Mrs. Nyce’s death was accidental.” Thus, he urges, contrary to the judge’s fact findings, that any waiver of rights was not knowing, intelligent, and voluntary.
After being advised of Miranda rights, a person can waive them if the waiver is made voluntarily, knowingly, and intelligently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 86 L. Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988). The State bears the burden of proof in this regard beyond a reasonable doubt. Bey, supra, 112 N.J. at 134. The court must look into the totality of the circumstances to ascertain whether the accused in fact knowingly and voluntarily decided to forego his or her rights. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 412 (1983); State v. Miller, 76 N.J. 392, 402 (1978). Courts consider the characteristics of the accused, as well as the details of the interrogation. Bey, supra, 112 N.J. at 134-35; Miller, supra, 76 N.J. at 402. Relevant factors include the defendant’s age, education, intelligence, previous encounters with the law, advice concerning his or her constitutional rights, length of detention, whether the questioning was repeated or prolonged, and whether physical punishment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973) (citations omitted); Bey, supra, 112 N.J. at 135; Miller, supra, 76 N.J. at 402. A “waiver of the right against self-incrimination which, by all subjective indicia, appears knowing, intelligent, and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion.” State v. Reed, 133 N.J. 237, 256 (1993). “At the root of the inquiry is whether a suspect’s will has been overborne by police conduct.” State v. Presha, 163 N.J. 304, 313 (2000).
The “use of psychologically oriented interrogation techniques is not inherently coercive.” State v. Cook, 179 N.J. 533, 562-63 (2004). However, “[c]onfessions are not voluntary if derived from ‘very substantial’ psychological pressures that overbear that suspect’s will.” Id. at 563 (quoting State v. Galloway, 133 N.J. 631, 656 (1993)). “In determining whether a defendant’s will was overborne, the totality of the circumstances must be examined, ‘including both the characteristics of the defendant and the nature of the interrogation.'” Cook, supra, 179 N.J. at 563 (quoting Galloway, supra, 133 N.J. at 654); see also Schneckloth, supra, 412 U.S. at 226, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
The judge’s fact findings are supported by substantial evidence in the record. The interrogation began at 9:00 a.m., included an interruption, and then at 11:40 a.m., Scull asked to tape the interview and defendant agreed. The taped portion began at 12:00 p.m. and continued until 1:48 p.m. Thus, the entire interrogation took less than five hours. No coercive techniques were used during the taped interview. Defendant was well-educated and had developed and run his own business. He was not afraid to deal with the police, as evidenced by his contact with them a year earlier. He also was not afraid to challenge them, as indicated when he questioned whether he had no choice other than to leave his home Friday night. The interview was scheduled for 9:00 a.m. after defendant had an opportunity to rest from Friday night until Sunday morning and was not physically or mentally exhausted. Defendant was in custody for only a few minutes before he waived his rights, at which time he denied being under the influence of any drugs. Refusing to accept a claim of innocence hardly constitutes “very substantial” psychological pressure. He did not assert his right to remain silent or to counsel. There is no evidence that supports defendant’s claim that the police presented any false evidence to him. Finally, defendant’s effort to convince the police that he accidentally killed his wife does not qualify as psychological coercion by the police. As a consequence, the judge’s conclusion that defendant’s waiver of rights was knowing, voluntary, and intelligent has substantial support in the record and may not be set aside by us. Johnson, supra, 42 N.J. at 162.
Defendant next contends that the police did not honor his request for counsel. He correctly states that on Saturday, Engleman called the police station and told Meyer that he was looking for defendant who had left a message for him. Defendant argues that the police had an obligation to inform him of this call prior to asking him to waive his Miranda rights on Sunday. This communication is quite different from the communication in Reed, supra, where the suspect was being held at the prosecutor’s office and his girlfriend called an attorney, who arrived at the prosecutor’s office shortly thereafter. 133 N.J. at 241. In the meantime, without informing the girlfriend, police moved defendant to another building, taking him down a back staircase to avoid seeing her. Ibid. When the attorney made his presence known to the prosecutor, he was told that the defendant was being questioned as a witness and not a suspect, he could not walk into the investigation, and that police would call him if and when the suspect requested an attorney. Id. at 242-43. Meanwhile, the defendant waived his Miranda rights and confessed. Id. at 244.
Here, defendant was not in custody when Engleman called on Saturday. Defendant points to no authority that says the police had an obligation to inform defendant that an attorney called looking for him the day before. Unlike the defendant in Reed, defendant had the opportunity all day Saturday to continue calling Engleman or to call another attorney. He could also have refused to speak to police until he was able to get in touch with Engleman. There simply is no legal authority for defendant’s position that Engleman’s call to the station on Saturday affected police obligations on Sunday.
Defendant next contends that the judge erred in concluding that his statement, “maybe it would be best for him to retain counsel,” was ambiguous. If a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. This is also true when a suspect invokes his right to counsel. State v. Perez, 334 N.J. Super. 296, 302 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001). But, “unless and until a suspect asserts his right to have counsel present following adequate Miranda warnings and waiver, the custodial interrogation may continue.” Id. at 302-03. If police are unsure whether a defendant is asserting his right to silence, they must either stop the interrogation completely or “ask only questions narrowly directed to determining whether defendant was willing to continue.” Johnson, supra, 120 N.J. at 284; see also State v. Chew, 150 N.J. 30, 63 (1997) (citing Bey, supra, 112 N.J. at 126; State v. Wright, 97 N.J. 113, 120 (1984)).
In Chew, the Court interpreted the defendant’s request that his mother contact his attorney as “an equivocal invocation of the right to counsel that had to be clarified before questioning could take place.” Id. at 63. By comparison, in State v. Mallon, 288 N.J. Super. 139, 150 (App. Div.), certif. denied, 146 N.J. 497 (1996), we held that a suspect’s request that the police “go out and hire an attorney” was not ambiguous and required a cessation of questioning, unless the defendant reinitiated communication. Here, defendant’s comment that if he were a suspect, “maybe it would be best to retain counsel” was ambiguous, as the judge found. See Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356-57, 129 L. Ed. 2d at 371-72. Scull recognized the ambiguity and sought to clarify it. Defendant began telling Scull why he should be looking at de Jesus, but Scull stopped him and told him he needed to know if he wanted counsel before he continued talking, and defendant said he did not wish to invoke this right. Scull did all that was required to clarify defendant’s ambiguous request. When defendant declined to invoke his rights, the interview appropriately continued. See Perez, supra, 334 N.J. Super. at 302-03. Defendant made a similar ambiguous comment shortly thereafter, Scull responded as before, and defendant said he did not wish to invoke his rights. We find no error in the judge’s conclusions in this regard.
With respect to Engleman’s efforts to reach defendant on Sunday, defendant first maintains that Meyer should have taken Michael Nyce’s cell phone, with Engleman on the line, into the interrogation room “so that he could complete the call with his attorney.” There is no evidence that Michael tried to hand Meyer the phone and he refused.
Defendant also appears to be arguing that the police should have told him that Engleman wanted him to stop talking to them, citing Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979). There, after being advised of his Miranda rights, Thompson signed a waiver and said he would make a statement, “but added that he first wanted to tell his story to an attorney.” Id. at 769. The officer told the suspect that an attorney could not relate his story to police and that an attorney would probably advise him to say nothing. Ibid. The suspect then proceeded with his statement, which was used at his trial. Id. at 769-70. The Fifth Circuit held that the statement was inadmissible because the police were not permitted to argue with a defendant over an “equivocal request for legal counsel.” Id. at 772.
The Thompson case is factually distinct from this case. Here, Scull did not try to talk defendant out of consulting an attorney, nor did he tell him that he would not be able to tell his story if he contacted an attorney because an attorney would tell him not to talk. As the judge found, this case is governed by Reed, supra, 133 N.J. at 262: “When, to the knowledge of the police, such an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before the custodial interrogation can proceed or continue.” That is what the police did here. There is no further requirement to tell defendant that the attorney advised him to cease speaking. The police provided defendant with Engleman’s home telephone number and told him that a phone would be provided if he wanted to call. Defendant said he wanted to be helpful, and did not wish to call the attorney, making it clear he was not exercising his right to counsel. Under these circumstances, the judge had substantial support in the record for his finding that defendant’s waiver of his right to counsel was voluntary, knowing, and intelligent.
We also find no merit to defendant’s contention that the police did not scrupulously honor his right to remain silent and cease questioning when he asserted that right based on his queries about contacting a lawyer, his request to go home and think about what he could tell them that would be helpful, and his offer to give a statement implicating himself if he could have an agreement that he would spend only a short time in jail. As the judge found, defendant’s queries and his conditional offer to give an incriminating statement are “not viewed under New Jersey law as a request for counsel or an invocation of his right to silence.” Harvey, supra, 151 N.J. at 222; see also Bey, supra, 112 N.J. at 138-39. The police properly made further inquiry respecting these equivocal assertions, Johnson, supra, 120 N.J. at 283, following which defendant made another unequivocal waiver.
Defendant also contends that he invoked his right to remain silent when he twice refused to speak, as Scull acknowledged. The Johnson Court acknowledged that “[s]ilence itself has been interpreted as an invocation of the right to remain silent.” Id. at 281 (citing Watson v. Texas, 762 S.W.2d 591, 597-98 (Tex. Crim. App. 1988)). In Watson, the court held that when a suspect remained silent during a thirty- to forty-five-minute interrogation, the silence itself constituted an invocation of his right to remain silent. Watson, supra, 762 S.W.2d at 597-98. Here, however, the record does not reflect how long defendant remained silent and it appears that this silence occurred while defendant was contemplating his decision about whether to call Engleman. We are satisfied that this was not an invocation of defendant’s right to silence. Rather, it was merely contemplation of his decision about whether to continue with his statement without the advice of counsel.
Other arguments made by defendant respecting alleged violations of his Fifth and Sixth Amendment rights on January 18, 2004, are either unsupported by the record at the suppression hearing or lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
1 The two-count indictment returned on April 4, 2004, had charged defendant with first-degree murder contrary to N.J.S.A. 2C:11-3a(2), but he was convicted of the lesser-included offense of passion-provocation manslaughter.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 This shoe size matched the footprint in the snow, which was linked to defendant through expert testimony.
4 Police located de Jesus on Saturday. He denied any involvement in Michelle’s death and related the events surrounding his last contact with her. He gave them the clothes and size nine-and-a-half work boots he was wearing Thursday night. He also consented to a buccal swab for DNA purposes.
5 We note, in any event, that the police had advised defendant of his Miranda rights before he was transported to police headquarters and gave his voluntary statement of the events the prior evening and that morning.
6 The evidence on which defendant relies either does not support this proposition or it was not adduced at the suppression hearing, in which case, we do not consider it on appeal. State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999).
At the very start of his trial, is Robert Higbee in trouble already?
Anyone else catch the beginning of the Robert Higbee trial on TruTV (Court TV) this week? A friend of mine was a guest on Thursday so I DVRed it and watched it this weekend. Since the trial is in New Jersey, I’ll have to keep an eye on it.
After just a few minutes, I wound up screaming at my TV like some crazy sports fan. I live, sleep, eat and breathe criminal defense. So, when I see a total miscarriage of justice, I get emotional.
Robert Higbee is a New Jersey State Trooper that is on trial for vehicular homicide for killing two teenage girls after he hit their minivan at about 65 mph. The focal point of the case is the fact that the Troop car’s “black box” shows that he blew though a stop sign even though he had indicated that he thought that he stopped and looked both ways.
From the very beginning, this looks like a weird trial. The prosecutor’s opening statement included a power point presentation that had some type of graph that was compiled from the data off the black box. The prosecutor explained what everything meant and thus, what the black box showed. In other words, the prosecutor presented evidence to the jury that only an expert can present way before the expert even testified. So what do we need the expert for?
Opening statements are just a preview for what each side expects to show, not the whole case in Cliff Notes style. I just don’t see how any of that was admissible and I hope I just missed the objection from Higbee’s attorney.
The first witness was Caesar Caiafa, the grandfather of the two girls. He had nothing to say about the accident because he didn’t see it happen. So why did he testify? Because the prosecutor knows that this trooper is a good guy. He said as much in opening. Thus, he has to play the sympathy card hard and early. I don’t really take issue with his tactics as they will play any card they can. I have a real issue with his attorney and I really hate to Monday morning quarterback another attorney.
However, this grandfather had nothing to say. I mean nothing. First off, I would have asked for a proffer. After reviewing the discovery, it should have been clear that he had nothing to add. The proffer would confirm this so a motion in limine (to exclude his testimony) would have been made. Now maybe that was done and it was denied. However, I still say you have to renew the objection.
This grandfather was permitted to cry several times, talk about the lives of the two girls, how he found out about the accident and the fact that he restores old cars. Ok great, does any of that prove or disprove any facts of this case? No.
I heard the commentators and hosts on TruTv say that you don’t want to object and have the jury hate you. While there are occasions when that may be the case, this was not one of them. This guy’s life is on the line! You have to stand up for him! Besides, there is a very simple solution. “Objection, Judge, can I have a side bar please”. You then go up there and say that you not only object to the testimony but you ask for a mistrial and if the mistrial is denied, you ask to strike his testimony and a proffer for what else he will say”.
My advice to new attorneys is as follows:
The judge’s decision with all of that is less important than the application itself. If you are denied across the board, you have at least set up a great issue for an appeal. Then, when the witness is done, you advise the court that you have an issue to address before the next witness comes up so a short break would be great.
When the jury leaves, tell the judge that you want to renew your objection and application for a mistrial and you want to put it on the record. This should be more than just a few sentences. Explain what you are objecting to and why and ask for a mistrial, not just a motion to strike. The NJ Appellate Division treats applications for mistrial different than objections, but don’t overuse it. Highlight the testimony that was objectionable, or in the case like this where it all is, group it together and don’t pull punches.
In this case, you have to tell the judge that the testimony about the lives of the girls, the crying, the events of that night that the witness saw and the fact that he restores care is nothing more than sympathy evidence that is not only irrelevant, but is specifically designed to compensate for the lack of evidence and prejudice the defendant. This evidence will distract from the facts of the case and get the jury so upset that they will convict the defendant on sympathy alone without considering the evidence.
I’m sure all of this sounds really cold, but as a defense attorney, you have to fight for your client regardless of what anyone may think about you. The wife of the main witness in one trial I had asked me how I live with myself after I called her husband a crook who should be the one on trial in front of the jury and a packed court room. I explained that I am a hired gun and my clients expect my best at all times. She did tell me that I did a very good job though. By the way, the verdict in that case was not guilty with only a 90 minute deliberation.
Story on the first day of trial is here.
State has 120 days to move case against Michael Coppola
Michael Coppola, a reputed New Jersey mafia boss (now 63) is accused of killing John “Johnny Cokes” Lardiere in the parking lot of the Red Bull Inn on April 10, 1977. Coppola was not a suspect until 1996, when an informant told authorities that Coppola had bragged about the killing during a party a few years prior. His attorney, Thomas Cammarata filed a motion to dismiss the complaint because nothing has happened since 2007.
The judge dismissed the motion but held that the State has 120 days to present the case to a grand jury or the court will dismiss the complaint. I’ve let cases go on like this for a few years when my client was not locked up as time is always on your side as a defendant.
However, when my client is locked up or when you want to move quick, you can file a motion for a probable cause hearing. The hearings are never held because the State presents the case to the grand jury prior to the date for the hearing.
I assume Coppola’s attorney had a good reason for handling the case the way he has. I am sure he has used his time wisely but there reaches a point where you run out of stuff to do without any evidence. Story is here.
New Jersey Attorney Paul Bergrin pleads guilty to conspiracy to promote prostitution
New Jersey Attorney Paul Bergrin has entered a plea of guilty to conspiracy charges in New York with regard to a former escort company called NY Confidential. Lucky for Bergrin, he was able to avoid felony criminal charges. There is no indication yet as to what will happen with his ability to practice law. I don’t think he’ll have that much of a problem because the charges are not that serious compared to what he was facing.
I don’t know Mr. Bergrin or the facts of the case, but this is not a case where he decided to start an escort business. Instead, he took it over for a client that was in prison. This is important because it is easy to cross the line between helping out a client and breaking the law. I’m sure all of that was taken into account in working out this case.
The bottom line is, his attorney, Gerald Shargel did a great job and I wish Mr. Bergin the best of luck in the future.
Tonacchio Law LC 