STATE OF NEW JERSEY VS. LATASHA M. BAKER (12-08-2188, CAMDEN COUNTY AND STATEWIDE) ( 2018 )


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  •                                NOT FOR PUBLICATION WITHOUT THE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-0393-14T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    LATASHA M. BAKER,
    Defendant-Appellant.
    ————————————————
    Submitted April 11, 2018 – Decided September 24, 2018
    Before Judges Fuentes and Suter.
    On appeal from Superior Court of New Jersey, Law
    Division, Camden County, Indictment No. 12-08-2188.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Jacqueline E. Turner, Assistant Deputy
    Public Defender, of counsel and on the brief).
    Mary Eva Colalillo, Camden County Prosecutor,
    attorney for respondent (Jason Magid, Assistant
    Prosecutor, of counsel and on the brief).
    The opinion of the court was delivered by
    Suter, J.A.D.
    Defendant Latasha M. Baker appeals the July 14, 2014 judgment of
    conviction following a jury trial, contending the court erred by not instructing
    the jury on the affirmative defense to felony-murder, by not suppressing
    statements she made to the police and by not granting her motion for judgment
    of acquittal. She also challenges her sentence as excessive. We affirm the
    convictions and sentence.
    I
    We relate these facts based on the record from defendant's trial. On
    October 14, 2009, Silvia Ramos Morales and her husband Oscar Hernandez were
    about to close their bakery in Woodlynne for the evening when defendant
    entered carrying a baby and asked to buy a slice of cake. She left when they did
    not have what she wanted but returned in a few minutes. Shortly after, three
    men came in. One had a mask and a gun. He followed Hernandez as he ran into
    the kitchen, fatally shooting Hernandez in the chest. The other men, who
    blocked the entrance, told two prospective customers not to enter. Sensing
    something was wrong, they alerted a police officer. The customers in the store
    were robbed. They told the police the men were armed. The robbers attempted
    but were not able to open the cash register, and left the bakery when the police
    arrived.
    A-0393-14T3
    2
    Defendant and her baby were in the bakery throughout this. Just after the
    incident, defendant told the police that a Hispanic man in a red jacket, who she
    did not recognize, "snatched" her cell phone. The next day, October 15, 2009,
    the police traced defendant's cell phone signal to her apartment, which was
    located on the same block as the bakery. After she consented to a search of the
    apartment for the phone, the officers found the cell phone under her couch.
    The police interviewed defendant that day for three hours at the
    prosecutor's office and her statement was recorded. Defendant's explanation to
    the police about how the cell phone was in her apartment varied, but all the
    explanations indicated the robbers had to know her. She claimed the phone was
    returned to her by the robbers as a favor because she was a single mother, or to
    prevent her from calling the police. She speculated that she was being framed
    and that a neighbor was involved in the robbery. Further, she claimed it could
    have been her neighbor's sister's boyfriend. Defendant also claimed she spoke
    to her brother, Rashawn Carter, twice that day around the time she entered the
    bakery. Following her interview, the police took her home.
    On October 22, 2009, defendant agreed to be interviewed again at the
    prosecutor's office. This interview was for ten hours. By this time, the police
    had reviewed surveillance video from the bakery that showed defendant leaving
    A-0393-14T3
    3
    the bakery and returning, a fact she had not mentioned to the police during the
    October 15, 2009 interview. She explained to the police that she left to go to
    another store. However, the officers pointed out that the store was in the
    opposite direction from her movements depicted on the videotape.
    Defendant's phone records showed she made eighteen calls to her brother
    Rashawn Carter, just before and after the robbery occurred, not one or two calls
    as she said in her pervious interview. Historical cell site analysis revealed that
    both defendant's and her brother's phones were located near the bakery at that
    time. Defendant claimed that her sister must have used her phone.
    The police asked defendant to take a lie detector test. She declined to do
    so saying "I don't know, I don’t know, I don’t think I should take it. If . . .
    they think I'm the suspect then . . . I should wait until I get a lawyer or
    something." The interview continued after that. The police did not administer
    Miranda1 warnings before taking either statement.
    Other evidence about the robbery was presented at trial. Eddie Ball, the
    father of one of defendant's children, identified Rashawn Carter from a
    videotape of the robbery; Carter was wearing Ball's distinctive red jacket that he
    had left at defendant's apartment. The customers, who were turned away when
    1
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    A-0393-14T3
    4
    the robbery was in progress, also identified Rashawn Carter as one of the men
    at the bakery. Michael Streater testified that in November 2009, he and William
    Cooper were cellmates, and Cooper told him that he shot someone at the bakery.
    The victim's wife testified about her identification of the man who shot her
    husband. The police arrested Rashawn Carter and William Cooper as they were
    hiding in a pantry closet at defendant's sister's house.
    Following defendant's indictment, she filed a motion to suppress her
    October 15, 2009 and October 22, 2009 statements. The motion judge denied
    the suppression of the October 15, 2009 statement, but granted in part the
    suppression of the October 22, 2009 statement. With respect to the October 15
    statement, the court found:
    [t]he totality of the circumstances, including the
    duration, location, time, nature of the questions,
    language employed in the interrogations, the conduct of
    the police, the status of the interrogators, status of the
    suspect, and all the other relevant factors, including her
    experience, her history, her knowledge, her
    expressions, her background, indicate that on balance
    that was clearly not a custodial interrogation. And . . .
    objectively, looking at the totality of the circumstances,
    a reasonable person in the defendant's position would
    have concluded that . . . [t]here was no significant
    deprivation of her freedom.
    However, the court did not have the same "comfort level" with the October
    22, 2009 statement. The court found the October 22 interview was lengthy and
    A-0393-14T3
    5
    that the tone of the interview changed over time. The record shows defendant
    stated, "if they think I'm the suspect then . . . I should wait until I get a lawyer
    or something," meaning if she were a suspect then she wanted counsel. The
    interrogating police officers accused defendant of protecting someone. They
    asked defendant whether she wanted to go home. The court found:
    that Miranda . . . applies . . . in light of the tone, in light
    of the nature of her response . . . , and in light of what
    went on thereafter, . . . [a]nd her concerns and her
    perception of her status and the nature of the
    interrogation from that point on militate in favor of the
    defense and constitute invocation of Miranda and
    should be excluded under Miranda.
    The court suppressed the part of defendant's statement that was tainted by these
    interrogation tactics.
    The jury convicted defendant of first-degree felony-murder, N.J.S.A.
    2C:11-3(a)(3);    second-degree      robbery,     N.J.S.A.    2C:15;     second-degree
    conspiracy to commit robbery, N.J.S.A. 2C:5-2; and fourth-degree hindering
    apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4).               After merging the
    relevant charges, the judge sentenced defendant on the felony-murder count to
    a term of forty-five years imprisonment, subject to an eighty-five percent period
    of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, five
    A-0393-14T3
    6
    years of parole supervision and a consecutive term of eighteen months for
    hindering apprehension.
    II
    On appeal, defendant raises the following issues:
    POINT I
    THE TRIAL JUDGE ERRED IN NOT CHARGING
    THE JURY WITH THE AFFIRMATIVE DEFENSE
    TO FELONY MURDER, AS PROVIDED BY N.J.S.A.
    2C:11-3a(3)(a)-(d). (Not Raised Below)
    POINT II
    THE TRIAL COURT ERRED IN FINDING THAT
    MS. BAKER WAS NOT IN CUSTODY AT THE
    TIME SHE WAS BEING INTERROGATED BY THE
    POLICE. U.S. Const. Amends. V, XIV; N.J. Const. Art.
    I, para. 10.
    POINT III
    THE TRIAL JUDGE ERRED IN DENYING THE
    DEFENDANT'S MOTION FOR A JUDGMENT OF
    ACQUITTAL ON THE CONSPIRACY COUNT AS
    THERE WAS NO EVIDENCE OF AN AGREEMENT
    PUT BEFORE THE JURY
    POINT IV
    THE DEFENDANT'S SENTENCE IS EXCESSIVE.
    A-0393-14T3
    7
    A
    In argument Point I, defendant contends that the trial court should have
    charged the jury with the affirmative defense to felony-murder. See N.J.S.A.
    2C:11-3(a)(3)(a)-(d). We review this issue under the standard of plain error,
    meaning an error "clearly capable of producing an unjust result," because it was
    not previously raised to the trial court. See R. 2:10-2.
    The Criminal Code provides an affirmative defense to felony murder
    where a defendant is not the only participant in the underlying crime and the
    defendant:
    (a) Did not commit the homicidal act or in any way
    solicit, request, command, importune, cause or aid the
    commission thereof; and
    (b) Was not armed with a deadly weapon, or any
    instrument, article or substance readily capable of
    causing death or serious physical injury and of a sort
    not ordinarily carried in public places by law-abiding
    persons; and
    (c) Had no reasonable ground to believe that any other
    participant was armed with such a weapon, instrument,
    article or substance; and
    (d) Had no reasonable ground to believe that any other
    participant intended to engage in conduct likely to
    result in death or serious physical injury.
    [N.J.S.A. 2C:11-3(a)(3)(a)-(d).]
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    8
    Defendant argues the trial court should have given the affirmative defense
    charge because she was acquitted of conspiracy to commit armed robbery and
    she did not know the other participants were armed. However, at trial, defendant
    contended she was not a participant in the robbery at all. The affirmative
    defense charge was not consistent with her defense strategy because it was a
    defense based on actions she claimed she did not do. Thus, it was not plain error
    for the trial court to charge felony murder without the affirmative defense when
    to do so was not consistent with defendant's defense strategy. See State v.
    Daniels, 
    224 N.J. 168
    , 184 (2016).
    B
    Defendant contends the trial court should have suppressed her October 15,
    2009 statement and all of her October 22, 2009 statement to the police.2
    Defendant argues the police had a strong suspicion by October 15 that she was
    involved in the robbery. According to defendant, their aggressive questioning
    after her cellphone was found in her apartment revealed they viewed her as a
    suspect. Then, on October 22, 2009, she was confronted with her cell phone
    records and the police asked her to take a lie detector test. Although the motion
    judge suppressed a portion of the October 22 statement she contends all of her
    2
    Defendant acknowledges she was not in custody when she gave her first
    statement to the police on October 14, 2009, and did not seek its suppression.
    A-0393-14T3
    9
    statements "were an integral part of the State's case" and should have been
    suppressed. We disagree.
    "An appellate court reviewing a motion to suppress evidence in a criminal
    case must uphold the factual findings underlying the trial court's decision,
    provided that those findings are 'supported by sufficient credible evidence in the
    record.'" State v. Boone, 
    232 N.J. 417
    , 426 (2017) (citing State v. Scriven, 
    226 N.J. 20
    , 40 (2016)).     We do so "because those findings 'are substantially
    influenced by [an] opportunity to hear and see the witnesses and to have the
    "feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 
    218 N.J. 412
    , 424-25 (2014) (alterations in original) (citing State v. Johnson, 
    42 N.J. 146
    , 161 (1964)). We owe no deference, however, to conclusions of law made
    by trial courts in suppression decisions, which we instead review de novo. State
    v. Watts, 
    223 N.J. 503
    , 516 (2015) (citing State v. Vargas, 
    213 N.J. 301
    , 327
    (2013)).
    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." State v. Hubbard, 
    222 N.J. 249
    , 265-
    66 (2015) (quoting Miranda, 
    384 U.S. at 444
    ). In determining whether a
    custodial interrogation has occurred, a court must examine all circumstances
    A-0393-14T3
    10
    surrounding the interrogation. State v. O'Loughlin, 
    270 N.J. Super. 472
    , 477
    (App. Div. 1994). "The critical determinant of custody is whether there has been
    a significant deprivation of the suspect's freedom of action based on the
    objective circumstances . . . ." Hubbard, 222 N.J. at 266-67 (quoting State v.
    P.Z., 
    152 N.J. 86
    , 103 (1997)). The inquiry is "'how a reasonable [person] in
    the suspect's position would have understood his situation.'" Id. at 267 (quoting
    Berkemer v. McCarty, 
    468 U.S. 420
    , 442 (1984)). The State must also prove a
    defendant's statement was freely and voluntarily given. State v. Hreha, 
    217 N.J. 368
    , 383 (2014).
    We discern no error by the motion judge. The question is not as defendant
    has posed it, whether the statements were an integral part of the State's case, but
    whether she reasonably believed she was not free to leave. The motion judge
    carefully analyzed each statement under the factors described in State v. Brown,
    
    352 N.J. Super. 338
    , 352 (App. Div. 2002). We agree based on his analysis that
    defendant's October 15, 2009 statement was not the result of a custodial
    interrogation. Defendant was only asked at that time to explain how the stolen
    cell phone was returned to her house. By the time she was questioned on
    October 22, 2009, however, the police had more information from the cell phone
    records and the surveillance video and asked her about inconsistencies from her
    A-0393-14T3
    11
    prior statements. The fact that the interview is conducted at the prosecutor's
    office did not make this a custodial interrogation. See State v. Micheliche, 
    220 N.J. Super. 532
    , 536 (App. Div. 1987) (questioning in a police station does not
    necessarily establish custody). The fact that the police may have a suspicion
    that she was involved in the crime does not convert the interview to a custodial
    interrogation. See State v. Nyhammer, 
    197 N.J. 383
    , 406 (2009).
    Here, the motion judge's order was based on the change in the tone of the
    interview toward defendant when she declined to take a lie detector test,
    expressing she wanted a lawyer if she were a suspect. We agree with the motion
    judge that a reasonable person could have concluded she was not free to leave
    at that point.
    C
    Defendant contends the trial judge erred by denying her motion for
    acquittal under Rule 3:18-1 on the conspiracy count, arguing there was no
    evidence of a conspiracy. Our standard of review is whether there was sufficient
    evidence to warrant a conviction. R. 3:18-1. See State v. Reyes, 
    50 N.J. 454
    ,
    458-59 (1967) (providing that the issue is whether there is sufficient evidence
    for a reasonable jury to find guilt beyond a reasonable doubt "giving the State
    the benefit of all its favorable testimony as well as all of the favorable inferences
    A-0393-14T3
    12
    which reasonably could be drawn therefrom."). The essential requirement of a
    conspiracy is an agreement with another person to engage in conduct that is a
    crime or an attempt to do so or to agree to aid another with planning or
    commission of a crime or attempt to do so. N.J.S.A. 2C:5-2(a)(1)-(2); See In re
    State ex rel. A.D., 
    212 N.J. 200
    , 222 (2012).
    Here, there was sufficient credible evidence that defendant was part of the
    plan to commit robbery. She was in communication with the robbers before and
    after it, appeared to act as a look out, misled the police about the return of her
    cell phone and then about the identity of the robbers. This was sufficient to deny
    the motion for acquittal.
    D
    Finally, Defendant argues her forty-five year sentence for felony murder
    and consecutive eighteen-month term for hindering is excessive because she did
    not have a weapon or know that the other participants were armed. We reject
    defendant's contention that her sentence was excessive.        Our review of a
    sentencing determination is limited. State v. Roth, 
    95 N.J. 334
    , 364-65 (1984).
    We review a judge's sentencing decision under an abuse of discretion standard.
    
    Id. at 363-64
    . We must determine whether:
    (1) the sentencing guidelines were violated; (2) the
    aggravating and mitigating factors found by the
    A-0393-14T3
    13
    sentencing court were not based upon competent and
    credible evidence in the record; or (3) 'the application
    of the guidelines to the facts of [the] case makes the
    sentence clearly unreasonable so as to shock the
    judicial conscience.'
    [State v. Fuentes, 
    217 N.J. 57
    , 70 (2014) (alteration in
    original) (quoting Roth, 
    95 N.J. at 364-65
    ).]
    Here, the court found aggravating factors: N.J.S.A. 2C:44-1(a)(3) the risk
    of re-offense; (6) the extent of defendant's prior criminal record and the
    seriousness of the offenses; and (9) the need to deter. It placed significant
    weight on factor three because of defendant's "consistent life of crime since the
    age of 19" and her failed opportunities for rehabilitation. It placed moderate
    weight on factor six considering that none of her prior offenses involved
    violence. The court placed significant weight on factor nine, the need to deter.
    The court found no mitigating factors. Defendant contends the court
    should have considered defendant's children in mitigation. The court found "she
    put her own selfish interests before those of her one-year-old child, who was
    running around the store as the three armed robbers burst into the store." The
    court considered her prior criminal record. There was nothing erroneous about
    the court's analysis nor did the sentence shocks one's conscience, given the
    nature of the offenses. The sentence was within the sentencing guidelines. We
    thus discern no abuse of discretion.
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    14
    Affirmed.
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    15