STATE OF NEW JERSEY VS. LATIMAR BYRDSELLÂ (07-02-0162, CUMBERLAND COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5356-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LATIMAR BYRDSELL,
Defendant-Appellant.
________________________________________________
Argued June 6, 2017 – Decided December 1, 2017
Before Judges Messano, Suter, and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 07-02-0162.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Al Glimis, Assistant Deputy Public
Defender, of counsel and on the brief).
Jane C. Schuster, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Schuster, of counsel and on the brief).
PER CURIAM
Defendant Latimar Byrdsell was convicted of crimes
committed on July 10, 2006, against his fiancée's daughter, who
was three years old. He challenges the denial of his motion to
suppress statements he made to investigating officers the next
day, the jury instruction on consideration of the unrecorded
portions of his custodial interrogation and his sentence.1
Defendant did not testify or present evidence at the suppression
hearing or trial.
The jury found defendant guilty of aggravated manslaughter,
N.J.S.A. 2C:11-4(a),2 felony murder in the commission of sexual
assault, N.J.S.A. 2C:11-3(a)(3) (count two); and first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count three).3
1
Four judges of the Superior Court were involved in this case.
A hearing on defendant's motion to suppress commenced on April
11, 2011. On May 3, 2011, the suppression hearing was started
anew before a different judge. That judge took testimony and
listened to audio-recorded interviews on May 3, 4, 5 and 17,
2011, and that judge issued a written opinion dated November 4,
2011. A third judge presided over defendant's jury trial, which
commenced on April 24, 2013, and a fourth judge sentenced
defendant on November 15, 2013.
2
In count one, the grand jury charged murder, N.J.S.A. 2C:11-
3(a)(1)-(2), and the judge submitted aggravated manslaughter to
the jury as a lesser included offense.
3
The jurors did not consider counts four or five, charging
second-degree sexual assaults as defined in N.J.S.A. 2C:14-2(b)
and (c). Count five was dismissed at trial, and the verdict
sheet directed the jurors not to consider count four if they
found defendant guilty of first-degree sexual assault.
2 A-5356-13T1
The court merged defendant's convictions for felony murder
and first-degree sexual assault but not his convictions for
felony murder and aggravated manslaughter. As mandated by
N.J.S.A. 2C:11-3(b)(3) for felony murder involving sexual
assault involving a child less than fourteen years old, the
court sentenced defendant to life imprisonment without parole.
For aggravated manslaughter, the court imposed a concurrent
twenty-seven years' imprisonment subject to periods of parole
ineligibility and supervision required by the N.J.S.A. 2C:43-
7.2. The court also ordered restitution and imposed monetary
sanctions and assessments for the homicides and the sexual
assault.
I.
When the crimes were committed, defendant, his fiancée, and
her child were living, as they had been for several months, in a
motel-apartment in Millville. On July 10, the child was alone
in defendant's care from about 1:45 p.m., when her mother left
for work, until the EMTs arrived in response to 911 calls
defendant placed at 9:38 and 9:43 p.m. The child's mother had
directed defendant to call 911, because she had called him from
work and he told her the child was gasping for air.
The child's pulse was weak when the EMTs got to the
apartment and became undetectable during the trip to the
3 A-5356-13T1
hospital. Despite the efforts of EMTs, the paramedics who
joined them en route to the emergency room (ER), and ER staff,
the child's heartbeat was not restored. She was pronounced dead
at 10:38 on July 10. The ER-doctor examined the child's body
for trauma and saw injuries to her vaginal and anal areas.
Consequently, law enforcement was notified.
The next afternoon Detectives O'Neill and Roman of the
Cumberland County Prosecutor's Office (CCPO) interviewed the
child's mother at her mother's home. Defendant arrived while
they were there, and he agreed to accompany the detectives to
the police station in Millville and give a statement.
Defendant's interview commenced at 4:00 p.m., and from 4:00
until 8:58, which is when defendant asked a detective to "cut"
the recording device "off for a second," his interviews were
recorded.4 After that, there were no recordings. Defendant's
interview ended at 11:53, which is when he signed a statement
the detectives had composed and typed. The statement he signed
is the detectives' typed summary of defendant's statements: "I
was asked to voluntarily give a taped statement or written
4
There were pauses in the recording to change its memory card
and other pauses where one or both officers left the interview
room. At the hearing on defendant's motion to suppress, the
defense stipulated that nothing of import occurred during those
breaks.
4 A-5356-13T1
statement regarding my involvement in this investigation, but I
refused after having been advised that I'm not obligated to give
a taped or written statement." Because the recording had not
been re-activated when the statement was prepared, neither
defendant's refusal to give a recorded statement nor the
admissions it includes were recorded.
The statement, which was read to defendant before he signed
it and to the jury at trial, includes these admissions.
Defendant started drinking brandy between 3:00 and 4:00 in the
afternoon on July 10. He had purchased the brandy the day
before and hidden it in a pocket of pants in their hamper,
because his fiancée thought he acted crazy when drinking.
Around 8:30, the child acted up, and he told her to be quiet.
Upset by her crying, he let the alcohol take over. He picked
the child up from her bed, laid her on the other bed on her
stomach and put a pillow over her head. When she moved and
tried to take the pillow off, he pushed it down. After she was
quiet, he removed the pillow and noticed she was not breathing
normally. The injuries to the child's vagina and anus "were
caused" when he had her head covered, but he did not put
anything inside her or touch her vagina or anus. No one else
had come into their apartment that day. Defendant was sorry,
did not mean to do it and would take it back if he could.
5 A-5356-13T1
Following an autopsy, the medical examiner (M.E.) concluded
the child died as a consequence of asphyxia due to smothering.
The M.E. found internal and external bruising of the child's
neck and back. Among other injuries, the M.E. found a one-half
inch long rectal tear caused by a "forceful stretching," an
abraded bruise inside the child's labia minora, and, a hymen
that was not intact, "very red" and had a "scrape." The M.E.
concluded those injuries were sustained no earlier than twenty-
four hours before the child's death.
Although the child had been with relatives the day before
she died, she, her mother and defendant returned to their
apartment together at about 11:00 p.m. that night. That was
about twenty-three hours and thirty-eight minutes before she was
pronounced dead. During the early part of his interview,
defendant agreed to provide and provided a DNA sample, but the
results disclosed nothing significant. There were no witnesses
to the crime.
Defendant raises these issues on appeal:
POINT I
THE POLICE VIOLATED DEFENDANT'S FIFTH
AMENDMENT AND STATE COMMON LAW RIGHT TO
COUNSEL BY QUESTIONING HIM AFTER HE INVOKED
HIS RIGHT TO COUNSEL. SINCE DEFENDANT'S
RIGHTS WERE NOT SCRUPULOUSLY HONORED, HIS
SUBSEQUENT STATEMENTS AT VINELAND POLICE
6 A-5356-13T1
HEADQUARTERS MUST BE SUPPRESSED. (U.S. CONST.
AMENDS. V; XIV; N.J. CONST. ART. I, ¶ 1).
POINT II
BECAUSE BYRDSELL'S ORAL AND WRITTEN STATEMENTS
AT THE VINELAND POLICE DEPARTMENT WERE NOT
KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY
MADE, AND BECAUSE THREE HOURS OF BYRDSELL'S
INTERROGATION AT VINELAND POLICE HEADQUARTERS
WAS UNRECORDED BY THE POLICE, CONTRARY TO R.
3:17, THE TRIAL COURT'S REFUSAL TO GRANT HIS
MOTION TO SUPPRESS THOSE STATEMENTS DEPRIVED
HIM OF DUE PROCESS OF LAW AND VIOLATED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION. (U.S.
CONST., AMEND V, XIV; N.J. CONST. (1947) ART.
I, PAR. 1).
A. VOLUNTARINESS.
B. FAILURE TO RECORD STATEMENT
PURSUANT TO R. 3:17.
POINT III
A CRITICAL SECTION OF [THE] COURT'S CHARGE ON
THE FAILURE OF THE POLICE TO RECORD
DEFENDANT'S STATEMENT, THAT PORTION WHICH
INFORMED THE JURY OF THE EVIDENCE IN THE CASE
THAT IT COULD CONSIDER IN DECIDING WHETHER
BYRDSELL'S STATEMENTS WERE CREDIBLE, WAS
OMITTED. (NOT RAISED BELOW)
POINT IV
IN THE ALTERNATIVE, THE CASE SHOULD BE
REMANDED FOR RESENTENCING BECAUSE THE
SENTENCING JUDGE WRONGLY FOUND SEVERAL
AGGRAVATING FACTORS AND FAILED TO FIND AS
MITIGATING FACTORS THE FACT THAT BYRDSELL HAS
NO PRIOR CRIMINAL RECORD AND THE FACT THAT HE
HAS SUBSTANTIAL COGNITIVE IMPAIRMENTS.
7 A-5356-13T1
II.
Defendant's challenges to his convictions all concern the
admission of statements he made to officers investigating the
crimes. Review of such rulings is narrow. Where factual
findings are "supported by sufficient credible evidence in the
record" deference is required. State v. S.S., 229 N.J. 360, 374
(2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)); see
id. at 381. "Corrective action" is appropriate only "when
factual findings are so clearly mistaken — so wide of the mark —
that the interests of justice demand intervention." Id. at 381.
Only review of legal issues is de novo. Id. at 380.
A.
Defendant claims he invoked the right to counsel "for a
limited purpose (the polygraph exam)" and detectives failed to
scrupulously honor his invocation.5 This argument rests on a
segment of the interview that was recorded.
5
The brief submitted on defendant's behalf states:
Because Mr. Byrdsell requested counsel for a
limited purpose (the polygraph exam), the
police could continue to question him at the
Millville Police headquarters without having
counsel present. See Connecticut v.
Barrett, 479 U.S. 523 (1987) (where
defendant told the officer that he would not
give a written statement unless his lawyer
was present, but had no problem talking
(footnote continued next page)
8 A-5356-13T1
When defendant's interview with Detectives O'Neill and
Roman commenced at 4:00 p.m., O'Neill posed preliminary
questions. Defendant was twenty-three years old and a high
school graduate, could read and write the English language and
had never been arrested or convicted of a crime. O'Neill then
delivered Miranda6 warnings. Defendant does not challenge the
clarity or adequacy of the warnings or the validity of his
waiver of his Miranda rights, which the judge found the State
established beyond a reasonable doubt. State v. Adams, 127 N.J.
438, 447 (1992). Accordingly, there is no reason to address the
warnings.
After defendant signed the waiver of his Miranda rights,
O'Neill questioned defendant about his living arrangements, his
relationship with the child, and the events of July 10 and the
previous day; Roman primarily observed. Defendant initially
told the detectives he had been alone with the child from the
time her mother went to work. O'Neill told defendant the M.E.
(footnote continued)
about the offense, this was only a limited
request for counsel, and the police could
continue to question him).
[emphasis added].
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
9 A-5356-13T1
had found damage to the child's vagina and anal areas, and he
and Detective Roman had to determine how they were caused.
Defendant answered O'Neill's questions, and at 5:12 p.m., he
agreed to give and provided a sample of his DNA.7
O'Neill had to pause the recording device to change the
disc at 5:27. At that point, he and defendant had been
discussing the case for nearly an hour and one-half. Five
minutes later, the interview resumed.8
The first question O'Neill posed when the recording was
resumed at 5:32 was whether the detectives and he had talked
about the case while the tape was off. Defendant said, "I asked
you one question." O'Neill asked him to repeat it, and
defendant did: "Alright, what can I do to clear my name out of
this because I didn't do anything."
O'Neill asked defendant to speak a little louder. Instead
of repeating his question, defendant commenced the colloquy he
claims was his invocation of the right to counsel.
[Defendant]: I'll take a lie detector test
to clear my name because I didn't do any
such thing.
[Detective]: So you want to take a lie
detector test?
7
The DNA testing did not yield any significant information.
8
See footnote 4 above.
10 A-5356-13T1
[Defendant]: If that's what it comes down
to, like for that part I will request a
lawyer because now I feel like I'm being
accused of something that I didn't do.
[Detective]: Okay. Well, uh . . . .
[Defendant]: I tell you everything I know,
everything I know, I told you. I have not
told you no lie. I'm not going to tell you
no lie. And now I feel as though like
(indisc.) like thinking I'm the suspect when
I didn't do anything wrong. I'm saying,
tell you from the bottom of my heart, I
never lied to you since we begin this
interview, I never lie to you. I'm not
going to start now but you, you all is
looking at me like I'm the one doing all
this and I'm not. I'm telling you, I'm not.
I never done (indisc.), that's not me. I
don't do things like that. I don't get no
satisfaction out of that. There's nothing
for me there. I don't do that. It never
crossed my mind. It never will. And it
hurt to be in a situation like this knowing
that I didn't do no such thing. I can tell
you and I can tell anybody that and I will
keep saying it, keep saying it because I did
not do it.
[Detective]: Okay.
At the suppression hearing, defense counsel asked O'Neill
whether he responded by asking "do you want a lawyer present?"
The detective, who had not asked that question, responded:
Let me make it clear to you. [Defendant]
said that he would be willing to take a lie
detector test, which I wasn't expecting him
to say it because it wasn't even part of the
conversation. He said he felt like he was
being accused now, but for that part of it
he will request an attorney, referring to
11 A-5356-13T1
the polygraph test, if it was available to
him. That was clearly my understanding.
Defense counsel then asked O'Neill whether he agreed that
accusations of sexual assault against a child would be
distressing and lead someone to ask for an attorney about
speaking to the police. O'Neill responded: "But, that wasn't
the case in this particular investigation. He didn't ask to
speak to an attorney regarding speaking with me. He was
referring to the polygraph test."
The judge found defendant had not invoked his right to
counsel. He explained, defendant
indicated that for the upcoming polygraph
examination, he would request a lawyer,
stating "for that part (the polygraph
examination) I will request a lawyer." . . .
[Defendant's] statement here is nothing more
than an indication that the defendant
reserved his right to request an attorney at
some future point in time.
[emphasis in original.]
That finding is "supported by sufficient credible evidence
in the record" and deference is required. S.S., supra, 229 N.J.
at 374, 381. After the recorder was reactivated, defendant said
he had asked O'Neill how he could clear his name, and when asked
to repeat the question he asked, gave his own answer: "I'll take
a lie detector test to clear my name because I didn't do any
such thing." Viewed in that context, his stated intention "I
12 A-5356-13T1
will request a lawyer" if "it comes down to" a polygraph,
suggests his confidence that he would be able to convince the
detectives by talking to them. Defendant demonstrated that by
launching into the monologue professing his truthfulness,
sincerity and disdain for sexual abuse of children, which he did
without waiting for O'Neill to complete what he was saying.
Defendant's reliance on Connecticut v. Barrett, 479 U.S.
523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), is misplaced. In
Barrett, the Court determined that "defendant's refusal to give
a written statement without his attorney present was a clear
request for the assistance of counsel to protect his rights in
his dealings with the police," for that limited purpose. Id. at
527, 107 S. Ct. at 831, 93 L. Ed. 2d at 926. The difference
between this case and Barrett is that defendant did not say he
would not take a polygraph without a lawyer present. He said, I
"will request" an attorney if it comes to that.
The New Jersey Supreme Court's decision in State v. Gerald,
113 N.J. 40 (1988), highlights that statements like defendant's
require a two-step analysis. In Gerald, the Court was
confronted with what it termed an "alleged invocation of the
right to counsel." Id. at 114. The defendant had confessed to
the police chief and was then "asked to make a taped statement."
Ibid. "Defendant replied that he was willing to answer the
13 A-5356-13T1
officers' questions but that he wanted to consult with counsel
before making a taped statement." Id. at 114-15. "The officers
then offered to cease questioning, but the defendant indicated
that he would feel better if he talked about the incident." Id.
at 115. The Court concluded Gerald's statement raised "two
possible issues: first, [the threshold question] whether
defendant's statement constituted an assertion of the right to
counsel, and if so, whether the police properly honored that
assertion." Ibid. The Court concluded: Gerald's "statement was
equivocal at best. His indication that he would answer all
questions, but would not make a taped statement unless he had
seen a lawyer, was unclear regarding his invocation of his right
to counsel." Id. at 116 (emphasis added).
In this case, the defendant did not say he would not take a
polygraph without counsel. He said if it comes down to a
polygraph, "I will request a lawyer." In short, there was no
equivocation or ambiguity. As the trial court aptly put it, his
statement was "nothing more than an indication that the
defendant reserved his right to request an attorney at some
future point in time." (emphasis in original). Stated
differently, the statement was the equivalent of an
acknowledgment of his right to request counsel at any time.
14 A-5356-13T1
In State v. Alston, 204 N.J. 614, 624 (2011), the Court
directed that when a suspect's "statements are so ambiguous that
they cannot be understood to be the assertion of a right,
clarification is not only permitted but needed." As there was
no ambiguity or equivocation here, that rule had no application.
The judge properly resolved the threshold question
identified in Gerald — whether defendant invoked the right to
counsel — in the negative. For that reason, defendant's claim
that officers failed to scrupulously honor his invocation of the
right necessarily fails.
We address the events that followed defendant's first
reference to counsel, because Detectives O'Neill and Roman did
eventually bring defendant from the Millville to the Vineland
police station so that Detective Negron, of the Vineland Police
Department, could administer a polygraph. Defendant made all of
his unrecorded and his most incriminating statements during
subsequent interrogations conducted by Negron and O'Neill at the
Vineland station.
When defendant first mentioned the polygraph to O'Neill and
Roman, the detectives did not know if there was a qualified
officer available to administer one. Minutes after defendant
mentioned the polygraph, at 5:36, O'Neill and Roman left the
15 A-5356-13T1
interview room. At 5:45, O'Neill returned with his superior
Sergeant Chopek.
Chopek told defendant he had just spoken to the M.E., and
he gave defendant an account of what he knew about the case.
Defendant asked Chopek if he could ask Chopek a question, and
Chopek said, "Sure." Defendant asked, "What can I do [sic] able
to prove that I did no such thing?" In response, Chopek
mentioned that the DNA defendant had provided could help, but
not necessarily, and that another thing would be a polygraph,
which could be helpful or harmful depending upon whether it
showed deception. Defendant said, "Okay."
Chopek responded by reminding defendant of his prior
mention of counsel for a polygraph, thereby presenting defendant
with an opportunity to make the request he said he would make if
it came to that. The colloquy was brief:
[Chopek]: Okay, but I understand earlier
you told the detective that if you were, if,
uh, you'd be willing to take a polygraph
. . . if you were to take a polygraph, you'd
want an attorney for that.
[Defendant]: I'm trying to do anything to
prove my innocence because I did not do
anything. Whatever it takes to prove my
innocence. Because I have not done anything
but care for that child like (indisc.).
After that exchange, defendant continued to deny any
inappropriate touching of the child and asked twice if he could
16 A-5356-13T1
go and see his family. O'Neill told defendant they needed a few
minutes to discuss it, and then Chopek expressed appreciation
for his cooperation. Defendant asked again to go see his
family. Chopek asked, "When we're done here?" Defendant said
"Yeah," and then Chopek said, "Hell, yeah." Defendant said, "I
just want to be with my fiancée this time like this." The
officers left him at 5:56.
After that there was a significant break. At 6:01, O'Neill
returned and offered defendant something to drink, a bottle of
water, pizza or anything. Defendant said "I just want to see my
family, that's all." O'Neill and defendant each assured the
other he was doing the best he could. Defendant declined a
second offer of food and said, "I just want this to all be over
with." He declined another offer of something to eat or drink,
and O'Neill left the room at 6:02.
At 6:23, O'Neill returned to let defendant know he was
still waiting for a phone call. Defendant declined another
offer of food or beverage, and he restated his desire to see his
family. At 6:46, defendant asked O'Neill when he could go to
see his family, and O'Neill said he was still waiting for a
call. Defendant asked if O'Neill was waiting for the buccal
swab results. O'Neill said, "a couple of them" and told
17 A-5356-13T1
defendant he would be able to tell him what was "going on and
then we go right from there."
Three minutes later, O'Neill told defendant they could
offer him a polygraph if he wanted one and if he chose to do
that. O'Neill then knew Detective Negron could do a polygraph.
O'Neill told defendant he could go home if he passed but if it
came out that he was being deceptive they would have to sit down
and talk.
At 6:50, O'Neill left the room again. When he returned at
7:00, he told defendant they were going to give him the
opportunity to take the polygraph. He asked if defendant had
any questions, and defendant said: "Let's get it over with."
O'Neill introduced Negron to defendant at 7:37 in an
interview room at the Vineland station. Negron started by
telling defendant he wanted to advise him of his rights.
Defendant again acknowledged his understanding and waived his
rights. This colloquy on the right to counsel followed:
[Detective]: Do you still, uh, want to
proceed to speak with me?
[Defendant]: It's okay by me.
[Detective]: Huh?
[Defendant]: Yes, to prove my innocence,
yes.
18 A-5356-13T1
[Detective]: Okay. Now, uh, you have the
right to proceed our conversation with the
tape recorder on or you can have it shut it
off. What do you, how do you, how do you
want to continue this?
[Defendant]: (Indisc.) (Indisc.) make a
difference to me because I don't got nothing
to hide.
[Detective]: Okay. No problem. I need you
to put your initials here and sign your
name.
[Defendant]: Think a lawyer necessary?
[Detective]: That is up to you. That's,
it, it says here you have the right to have
an attorney present if you so desire. You
understand that right?
[Defendant]: Yeah, I understand.
[Detective]: Do you want an attorney?
[Defendant]: What's an attorney going to
do?
[Detective]: Well, I want you to understand
something. Okay, this is a, uh, an
investigation which is being handled by the
Prosecutor's Office here. You've come into
this, the Vineland Police Department because
you volunteered to take a polygraph. Okay.
Before I give you the polygraph, I have to
advise you of your rights. I want you to be
aware of your rights. Okay? If you, you
mentioned that . . . you said, if I feel, if
a lawyer's necessary, that is a decision
that you must make yourself. I can't make
that decision for you. I advised you of
your rights. Your [r]ights says that you
have the right to consult with an attorney
at any time, okay, and have him present
before and during questions. That's one of
19 A-5356-13T1
your rights. If you, if you wish to proceed
without an attorney, let me know. If you
don’t want to proceed and you want to
contact an attorney, that's . . . .
[Defendant]: I just want this over with. I
just want to prove my innocence.
[Detective]: But I'm just saying, what do
you want to do?
[Defendant]: Just give me the test.
[Detective]: You want to proceed without an
attorney?
[Defendant]: Yes. Let's get it over with.
[Detective]: Is that "yes"?
[Defendant]: Yes.
The judge addressed defendant's interactions with Chopek
and Negron set forth above in his written decision.
Later on in the interrogation here, when an
officer [Chopek] referred to [defendant's]
earlier statement that he wanted a lawyer
for the polygraph, [defendant] reiterated
his desire to prove his innocence. Finally,
shortly before the [intended] administration
of the polygraph, [defendant] again received
Miranda warnings, and asked what a lawyer
would do for him. Upon clarification by
police, [defendant] repeatedly indicated his
desire to proceed . . . . Here, as required
by Alston, the police clarified the
defendant's arguably ambiguous request for
counsel; in response, defendant indicated
that he wished to proceed without counsel.
Although [defendant] asked if needed a
lawyer when he was read his Miranda rights,
this is not an ambiguous request for counsel
under Alston, but merely a request for
20 A-5356-13T1
advice from a police officer [on] a known
right.
[See Alston, supra, 204 N.J. at 624.]
Those findings are supported by sufficient credible and
undisputed evidence and entitled to deference. Substantially
for the reasons the judge stated in his written opinion, as
supplemented above, we reject defendant's first claim.
Because defendant had not invoked his right to counsel for
a polygraph, the rule established in Edwards v. Arizona, 451
U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh'g denied, 452
U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981), that would
require cessation of all questions about a polygraph if
defendant had invoked his right to counsel for that limited
purpose, did not apply. For the same reason, this court's
decision in State v. Shelton, 344 N.J. Super. 505 (App. Div.
(2001), is inapplicable. In that case, we found error in the
denial of a suppression motion because the defendant invoked his
right to counsel for the limited purpose of making a written
statement and the officers' attempts to convince him to put his
oral admissions in writing violated their obligation to honor
his invocation.
Chopek, by reminding defendant of his statement of future
intention to request counsel, and Negron, by re-administering
21 A-5356-13T1
Miranda warnings, were presenting defendant with opportunities
to act upon his previously stated future intention.
B.
Defendant's remaining challenges to his convictions involve
the question whether his admissions were knowingly,
intelligently and voluntarily made, especially those that were
not recorded. "[T]he voluntariness of a confession [must] be
demonstrated beyond a reasonable doubt." State v. Cook, 179
N.J. 533, 552 (2004). In State v. Cook, the Supreme Court
initiated the process of developing a court rule addressing
recordation of custodial interrogations. Id. at 562; see State
v. Anthony, 443 N.J. Super. 553 (App. Div.) (discussing the
development and application of Rule 3:17 pursuant to Cook),
certif. denied, 224 N.J. 529 (2016).
Rule 3:17, which requires electronic recordation of
custodial interrogations of persons suspected of designated
crimes, had been in effect with respect to homicide
investigations for a little over six months when defendant was
interviewed on July 11, 2006. Anthony, supra, 443 N.J. Super.
at 566. Where the Rule requires recording, a failure to record
has two implications. It is a factor for consideration by the
judge, "in determining the admissibility of a statement," and
for consideration by the jury, "in determining whether the
22 A-5356-13T1
statement was made, and if so, what weight, if any, to give to
the statement." R. 3:17(d).
A violation of the Rule "does not require suppression of a
defendant's statement." Anthony, supra, 443 N.J. Super. at 566.
In that respect, the Rule follows prior law holding "that
whether a statement is memorialized or not is but a factor
contributing to the overall determination of a statement's
voluntariness." Cook, supra, 179 N.J. at 552. Rule 3:17 makes
it clear that the Court must consider that factor where there is
a violation.
In this case, the judge who decided the suppression motion
fully considered and properly applied Rule 3:17. He found a
violation of the recording requirement and weighed that
violation in determining whether defendant's statements were
knowingly, intelligently and voluntarily made and cited
paragraph (d) of Rule 3:17. The judge assigned "limited" weight
to that factor "because the only evidence before the court [with
respect to unrecorded statements] was the testimony of the
police, which [the judge] found credible." Given the deference
this court owes to credibility findings of a judge who had the
opportunity to hear and observe the testimony, we have no basis
for substituting our assessment of the weight assigned.
23 A-5356-13T1
Defendant also argues that "the findings of the trial court
are not supported by sufficient credible evidence in the
record," because the trial court's findings did not acknowledge
the substantial evidence in the record that "[defendant's]
statements at the Vineland Police Headquarters were not
voluntarily made, that [defendant's] will was overborne."
Defendant points to the length of the interrogation; his
mental exhaustion; his crying; his multiple references to
wanting to see and be with his family; the officer's use of
psychological coercion; Detective Negron's appeals to
defendant's Christian beliefs; the officers' misrepresentations
regarding the time the child sustained the injuries (a reference
to the officers' misstating the M.E.'s window for child's
injuries as twenty-four hours within the interview rather than
the child's death; and the officers' reference to another
suspect who avoided the death penalty because of cooperation.
The judge addressed each of those matters in his decision.
He found: the defendant was going through an "emotionally
upsetting experience" and "likely fatigued"9; the "untruthful
9
Because the portions of the interview that were recorded were
audio-recordings, not video-recordings, we take the court's
references to defendant's appearance, body movements and facial
expressions as based on the testimony of the detectives at the
suppression hearing, which the judge credited.
24 A-5356-13T1
representations" as to the time of injuries were insufficient to
overcome his will; the reference to the death penalty case was
neither a threat nor a promise but "an example of what happened
in other cases"; and that the appeal to defendant's religious
beliefs was one way to appeal to defendant's conscience and
sense of morality and right and wrong, and it was not enough to
overcome defendant's will.
In this case, "the trial court's decision was a close
call," but it is supported by the testimony of the officers the
judge found credible, not "clearly mistaken and therefore
entitled to deference." S.S., supra, 229 N.J. at 374.
For all of the foregoing reasons, we reject defendant's
challenges to the denial of his suppression motion, and affirm
the denial.
Defendant's objection to the jury instruction given as
required by Rule 3:17 has insufficient merit to require
discussion beyond the brief comments that follow. R. 2:11-
3(e)(2). Where a recording is required but not made, "the court
shall, upon request of the defendant, provide the jury with a
cautionary instruction." R. 3:17(e). In this case, the
instruction was given, and the instruction on the essential
principles guiding the jurors' consideration of the recordation-
violation, mirrored the Model Jury Charge (Criminal),
25 A-5356-13T1
"Statements of Defendant (When Court finds Police Inexcusably
Failed to Electronically Record Statement)" (Approved 2005).
For the first time on appeal, defendant objects to the
court's omission of a discussion of the trial evidence pertinent
to the circumstances, conditions and the officers' conduct and
methods during the interview. Because defendant did not raise
the objection at the time, review is for plain error.
Plain error in a jury instruction is "legal impropriety in
the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself the
error possessed a clear capacity to bring about an unjust
result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied,
399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). The risk
must be "sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have
reached." State v. Taffaro, 195 N.J. 442, 454 (2008).
The trial court conducted a charge conference on the
record, and neither of the two attorneys representing defendant
requested the court to include references to the evidence and
factors pertinent on this point. Moreover, one of defense
counsel's closing arguments focused on the circumstance that
attorney deemed important to the questions the jurors had to
26 A-5356-13T1
consider under the model charge in evaluating the officers'
testimony reciting statements defendant made during the
unrecorded portion of the interrogation.
After the court instructed the jury, the court asked
counsel if there were any objections. One of the two attorneys
representing defendant had an objection to the court's
instruction on an unrelated portion of the instruction.
Defendant's second attorney had no objection. When there is a
"failure to object" to a jury instruction at the time it is
given, it is "fair to infer . . . that in the context of the
trial the error was actually of no moment." State v. Macon, 57
N.J. 325, 333 (1971).
We recognize the importance of guidance related to the
proofs presented at trial. Nevertheless, in the context of this
case involving a myriad of pertinent circumstances, defense
counsel's closing argument highlighting all of the circumstances
favorable to defendant; the silence of both defense attorneys on
this point at the charge conference and after the court's
delivery of the instruction; and the fact that paragraph (e) of
Rule 3:17 requires a cautionary instruction only "upon request
of the defendant," we have no reasonable doubt about whether
additional guidance on the pertinent evidence would have changed
the outcome. Even assuming the omission was error, that error
27 A-5356-13T1
was, beyond a reasonable doubt, not one with capacity to change
the outcome and produce an unjust result.
III.
Defendant contends that the judge who sentenced him
"improperly found and weighed" aggravating and mitigating
factors. There is no reason to address the judge's
consideration of aggravating and mitigating factors.
The sentence imposed for felony murder was statutorily
mandated. N.J.S.A. 2C:11-3(b)(3). Accordingly, the
identification and weighing of aggravating and mitigating
factors was immaterial to that sentence. Defendant should not
have received any sentence for aggravated manslaughter. His
"aggravated manslaughter conviction should have merged into the
felony murder as there cannot be two homicide convictions for
the death of one victim." State v. Pantusco, 330 N.J. Super.
424, 444-45 (App. Div. 2000). The sentence that was imposed
must be vacated. Finally, the judge properly merged defendant's
conviction for aggravated sexual assault with his conviction for
felony murder, and no sentence was imposed for that crime. In
sum, there is no reason to ponder the judge's exercise of
sentencing discretion.
A remand is required to correct the judgment of conviction
to reflect merger of defendant's convictions for felony murder
28 A-5356-13T1
and aggravated manslaughter. Ibid. In addition, the judgment
reflects a conviction for a crime that the jury did not
consider, sexual assault in violation of N.J.S.A. 2C:14-2. That
crime was charged in counts four and five. The jurors did not
return a verdict on count four, which charged a violation of
N.J.S.A. 2C:14-2(b), because the verdict sheet directed the
jurors not to consider that offense if they found defendant
guilty of first-degree sexual assault. The judgment and amended
judgment of conviction, which were entered, respectively, on
December 3 and 23 of 2013, erroneously reflect merger of a
conviction on count four and that error must be corrected.
Count five charged a crime in violation of, N.J.S.A. 2C:14-2(b),
and that count was dismissed at trial. We remand for amendment
of the judgment of conviction to merge defendant's homicide
convictions, vacate his sentence for aggravated manslaughter and
dismiss count four. The mergers will require a new sentencing
proceeding to address the fines, penalties and assessments
imposed in light of the convictions.
Affirmed and remanded for amendment of the judgment of
conviction and resentencing in conformity with this opinion.
Jurisdiction is not retained.
29 A-5356-13T1