Opinion
DOCKET NO. A-3389-11T1
04-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEMAL ALBUT, a/k/a KEMEL ALBUT and KEMAL ALBERT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov and Jeanne Screen, Deputy Attorneys General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-04-0422. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov and Jeanne Screen, Deputy Attorneys General, of counsel and on the brief). PER CURIAM
Defendant Kemal Albut appeals from his conviction following a jury trial for aggravated manslaughter, N.J.S.A. 2C:11-4(a), and related assault and weapons charges. The charges arose from defendant's fatally shooting Jaime Bermudez and wounding his brother Brian Bermudez in Paterson in November 2008, before fleeing to Connecticut, where he was arrested in his girlfriend Brendaliz Mojica's motel room. Mojica allowed officers in the room, where they arrested defendant and recovered his weapon. After his arrest, defendant gave an unrecorded, inculpatory statement to police while still in Connecticut. One of the Paterson Police Department's (PPD) officers took notes of defendant's interrogation, but destroyed the notes after incorporating their contents into his official report.
A Passaic County Grand Jury subsequently returned an indictment charging defendant with: first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a nine-millimeter handgun for an unlawful purpose against Jaime and/or Brian Bermudez, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a nine-millimeter handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); first-degree attempted murder of Brian, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count four); and second-degree unlawful possession by certain persons not authorized to have a handgun, N.J.S.A. 2C:39-7(b) (count five).
To avoid confusion, we refer to individuals sharing the same surname by their first names.
Before his trial, defendant moved to suppress a nine-millimeter handgun and ammunition magazine which the police found in the motel room, and his out-of-state, unrecorded statement to the police. After a three-day hearing, the trial court denied both motions.
The same judge presided over defendant's jury trial. The jury convicted defendant of all charged crimes except first-degree murder (count one) and attempted murder (count four). With respect to counts one and four, the jury convicted defendant of the lesser-included offenses of aggravated manslaughter and aggravated assault by attempting to or causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).
At defendant's subsequent sentencing, the court granted the State's motion to impose a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The court merged the convictions for aggravated manslaughter and possession of a handgun for an unlawful purpose, and sentenced defendant to life imprisonment with an eighty-five-percent period of parole ineligibility, along with five years parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also sentenced defendant as follows: ten years on the unlawful possession of a handgun without a permit conviction, to run concurrently with the aggravated manslaughter sentence; five years on the aggravated assault conviction, to run concurrently with the other sentences; and ten years on the unlawful possession by certain persons not authorized to have a handgun conviction, to run concurrently with all other sentences.
On appeal, defendant argues his conviction must be vacated and a new trial granted based upon errors in the court's pre-trial evidentiary rulings and its jury charge. He also claims his sentence on the aggravated manslaughter conviction is manifestly excessive. Specifically, defendant raises the following arguments:
POINT I DEFENDANT'S UNRECORDED STATEMENT MADE AT THE NEWINGTON POLICE DEPARTMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO ESTABLISH THE INTEGRITY OF THE STATEMENT UNDER THE "TOTALITY OF THE CIRCUMSTANCES."
POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE CONCERNING THE FAILURE OF THE POLICE TO ELECTRONICALLY RECORD THE INTERROGATION OF DEFENDANT AND TO PRESERVE THE NOTES MADE CONTEMPORANEOUSLY DURING THE UNRECORDED INTERROGATION RESULTED IN PLAIN ERROR (NOT RAISED BELOW).
POINT III THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE DID NOT ESTABLISH THAT MS. MOJICA'S "CONSENT" WAS VOLUNTARY OR LAWFUL.
POINT IV THE TRIAL COURT'S JURY INSTRUCTIONS ON FLIGHT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL BECAUSE THERE WAS NO BASIS TO
SUPPORT AN INFERENCE OF A CONSCIOUSNESS OF GUILT.
POINT V THE CUSTODIAL TERM OF LIFE IMPRISONMENT IMPOSED ON DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
We have carefully considered the record and defendant's arguments on appeal. We affirm.
I.
We discern the following facts from the testimony developed during the suppression hearing and defendant's trial.
In November 2008, defendant and Mojica were in a dating relationship. Mojica lived in Hartford, Connecticut, where she was employed as a public school security guard. Defendant resided in Paterson. They would see each other on weekends when Mojica either travelled to Paterson and stayed there or picked up defendant and brought him back to Connecticut for the weekend. They typically stayed in a motel for the weekend when they were together.
During the last week of November 2008, defendant told Mojica that he had gotten into an altercation involving his cousin, who "had a problem wit[h] a guy". A few days earlier, defendant had notified her he intended to purchase a gun for safety. On November 28, 2008, defendant told Mojica someone had informed him "these other guys that he and his cousin had a problem with were [going to be] on the block that night."
That same evening, Brian walked alone to a fast food restaurant where he was to meet with friends. On the way, one of defendant's friends, Charles Umstead, and another person physically attacked Brian in an attempt to rob him. Brian recognized Charles because he had previously sold marijuana to him. Afterward, Charles and the other assailant fled on foot and were picked up by a car.
Brian called Jaime to tell him what happened and, about fifteen minutes later, Jaime picked up Brian in his car and drove on Main Street to search for Charles and his friend. Brian saw Charles near a pizzeria at the corner of Main and Robert Streets with five or six other people, two of whom he recognized as Charles' brother, John, and Raymond Burgos, Charles' and John's cousin. Charles and the others walked past the pizzeria towards a white van where they joined defendant, who arrived sometime after 8:00 p.m. with Mojica and her son.
Jaime parked his car on Atlantic Street, and he and Brian walked towards the other group. Jaime walked ahead of Brian and, as Jaime approached Charles he pushed him onto a parked car. Meanwhile, Burgos pushed Brian towards the sidewalk and told him to leave the area. Burgos fired a "warning shot" into the air with a black, semi-automatic pistol. Before the fight concluded, John heard defendant fire four or five additional shots from his black, semi-automatic pistol. One of those shots, fired at "[p]oint blank" range, hit Jaime. After the first shot, Brian turned around, saw a muzzle flash and heard four or five gunshots coming from the area of the van, where defendant was standing. Brian felt a sharp pain in his right hip and fell to the ground. When the police arrived, he told them that he had been shot, but did not remember how it occurred. Jaime, who had been shot in the head, was pronounced dead at the hospital.
John stated that neither he nor Charles were armed.
Brian suffered a fractured pelvic bone and injuries to his eye and back; he remained in the hospital for one week.
After the shooting, defendant got into the front passenger seat of Mojica's vehicle holding a black gun that she had never seen before. Burgos, Charles, and John, who were unarmed, got into the back seat of Mojica's car. Charles was bleeding around his nose and mouth. At Mojica's request, the three men exited the vehicle at the next block.
After the shooting, Mojica, her son, and defendant stayed at a motel in Paterson under Mojica's name. While there, Mojica asked defendant what happened, to which he responded that a fight occurred in the middle of the street and he fired his gun, but did not know whether he shot anyone.
On November 30, 2008, the three went to Mojica's parents' house in Connecticut to gather her belongings, and then to a room at a Connecticut motel registered under her name, where they stayed until the police arrived the following evening at around 11:00 p.m. While at the motel, Mojica again asked defendant why he shot his gun, but he provided no further explanation.
The day after the shooting, Brian identified Charles as the person who he heard call out "shoot him in the leg" before Brian was shot. Brian did not know to whom Charles was speaking. Also at the hospital, Brian told Patrol Officer Anthony Desopo of the PPD that he and Jaime were shot during a fight between Jaime and Charles over Charles' physical attack of him earlier that day.
Detective Sergeant A. Joseph Fulco of the Homicide Unit for the Passaic County Prosecutor's Office and PPD Detective Lieutenant Ron Humphrey investigated the shooting. On December 1, 2008, they spoke to one of the suspected participants, John, who identified defendant as the shooter.
The officers conducted a background check of defendant, which showed he had been incarcerated in state prison from 2003 to August, 2008. The prison's visitor's log reflected Mojica had visited him. Because the investigation also revealed defendant fled the scene of the shooting in a vehicle with Connecticut license plates, Fulco, Humphrey, PPD Sergeant Zahn and PPD Detective Garcia travelled to Hartford to meet with local authorities in attempt to find defendant.
On December 1, 2008, Fulco, Humphrey, and Garcia went to Mojica's parents' residence, where she also lived. Her parents advised the officer their daughter had left the home after visiting earlier with defendant. A neighbor told the police Mojica, her four-year-old son, and defendant usually stayed at a nearby motel.
Officers from the local police department located Mojica's car in the motel's parking lot. Before Fulco and Humphrey arrived, the local officers advised Mojica was staying in a room registered under her name with an adult male and a small child.
Four of the officers, all of whom were in plain clothes, and some local, uniformed officers, approached the motel room door with their guns holstered. According to Humphrey, he knocked and announced it was the police. Fulco recalled Humphrey displayed his detective shield. Mojica initially looked out the window from behind a curtain because defendant told her not to answer the door. However, after the officers identified themselves, Mojica opened the door because she was worried they would otherwise have broken into the room. The police entered with their guns drawn and pointed at her. Because Mojica was scared of getting arrested, she complied with the officer's directive to raise her hands and informed them defendant was in the bathroom.
Both Fulco and Humphrey heard a man behind the locked bathroom door talking, and ordered him to open the door. Fulco stated the man was crying, agitated, and said that "[t]hey're going to hurt me, no, no, no." When defendant eventually unlocked the door, Fulco and Humphrey found him lying on the floor with a cellular phone in his hand. Because defendant did not immediately show his hands as instructed, he was handcuffed with his hands behind his back and placed on the bed closest to the bathroom.
Humphrey and Garcia escorted Mojica and her son onto the outside balcony. Humphrey testified he told Mojica that he had a warrant for defendant's arrest and believed defendant was in possession of a gun. When Humphrey said he would get a search warrant for the room and her vehicle, Mojica stated that "she was going to cooperate." Humphrey responded by saying "it's understood . . . you don't have to do this," to which she reaffirmed her agreement. He denied threatening her. Humphrey described Mojica's appearance during their exchange as "a deer in the headlights," and believed she was worried about her child.
Mojica testified she did not recall Humphrey informing her that she could refuse to consent. She stated Humphrey and a few other detectives took her outside on the balcony while her son stayed inside on the bed. Humphrey told her he "needed to know where the gun was at." She initially denied knowing where the gun was because she was frightened about defendant "getting in trouble and about what would happen if [she said] something to hurt him."
Humphrey encouraged her to tell the truth because she had a good job and no criminal background. If not, he said he would charge her with conspiracy and remove her son. To ensure that her son would not be removed, Mojica believed she had no choice but to reveal the location of the gun. Mojica told Humphrey it was underneath the nightstand between the two beds. He recovered a nine-millimeter Ruger P-89 handgun in a blue plastic bag along with an ammunition magazine.
The officers permitted Mojica to gather her belongings at the motel room, and brought her home so that her son could stay with her parents while she was taken to headquarters for an interview. She was not handcuffed. After Mojica voluntarily waived her Miranda rights, she signed a sworn statement.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After the gun was found, defendant was transported to local police headquarters where Fulco and Humphrey interviewed him. The headquarters was not equipped with recording equipment, which neither Fulco nor Humphrey knew beforehand. Fulco testified that he read defendant his rights from a Miranda card at 11:37 p.m. on December 1, 2008. Defendant voluntarily signed a written waiver of his rights. He was not threatened or restrained during the interview.
Humphrey questioned defendant while Fulco took notes of what he said nearly verbatim. After the interview, Fulco rewrote his notes in a legible format and gave them to the lead detective for inclusion in the investigative report. Fulco destroyed his original notes in accordance with then-standard protocol.
According to Fulco, defendant stated that "two Spanish kids, Chuck, Johnny, and his cousin" were at the scene of the shooting. Defendant initially denied shooting anyone. After Humphrey informed him another witness had identified him as the shooter and the seized handgun would be tested to determine whether the fatal shot was fired from it, defendant said: "I'll tell you how it happened. There were two guns out there and someone had a knife." He further explained that he drove to Robert Street that evening with Mojica and her son, and was armed because he fought the night before with "a Spanish kid who represented that he was a Blood from Paterson." According to defendant, Burgos shot defendant's nine-millimeter handgun two or three times, and then dropped it towards defendant. "[S]omeone said shoot him," and defendant fired his handgun twice. One shot "hit the short Spanish kid in the head." Defendant realized he shot the kid because the kid "grabbed his right hip and went down." Burgos also fired his forty-caliber handgun. After the shooting, defendant explained he ran to Mojica's car and drove to his mother's house, and then to a motel in Wayne where he stayed with Mojica and her son for the night. Defendant subsequently brought his handgun to Connecticut.
At some point during defendant's statement, Garcia entered the room and said that Mojica told him that, after the shooting, three other people rode with her and defendant. Defendant confirmed they had picked up Charles, John, and Burgos on Getty Avenue.
On December 5, 2008, defendant was transported to Paterson police headquarters. He was re-Mirandized and again voluntarily signed a written waiver of his rights. Defendant ultimately decided not to give a statement.
II.
Defendant contends the court erred by denying his motion to suppress his unrecorded, custodial statement because the State failed to establish its integrity or present credible evidence to corroborate his statements. He also argued it should have been suppressed because his statement was unrecorded and the officer did not preserve his original notes of the interrogation. We disagree.
The court credited Fulco's and Humphrey's testimony about the circumstances surrounding defendant's interrogation, as well as Fulco's recollection of what defendant actually said. The court concluded the State had proven beyond a reasonable doubt defendant was properly advised of his rights, knowingly and voluntarily waived them, and provided un-coerced statements. Specifically, the judge found:
Defendant's waiver and subsequent statement to be valid and voluntary. Based on [d]efendant's background which showed that [d]efendant had the capacity to act knowingly and intelligently. The fact that the nature of the questioning was not coercive, the fact that the length, place and time of the questioning was not overly substantial or coercive, the fact that the police conduct was well within the bounds of propriety and the fact that [d]efendant clearly indicated understanding his rights.
The court also rejected defendant's argument that, without a recording of the interrogation, the court could not rely upon its "findings of fact and credibility determinations" to determine whether the Miranda warnings were properly administered, or if defendant actually made a statement and, if he did, exactly what was said. The court concluded the failure to record the statement given in Connecticut was consistent with the "the out-of-state exception to the electronic recording requirement contained in Rule 3:17[(b)(v)]."
In reviewing the admission of defendant's custodial statement, we defer to the judge's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). Moreover, we "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, our review of the motion judge's legal conclusions is plenary. State v. Vargas, 213 N.J. 301, 327 (2013).
In considering a defendant's motion to suppress a custodial statement given to police, a court must determine if a defendant's right against self-incrimination has been violated. See State v. W.B., 205 N.J. 588, 604-05 (2011) (citations and footnote omitted) ("[T]he Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, guarantees the right against self-incrimination[.]"). Thus, "[t]he State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). To determine whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Galloway, supra, 133 N.J. at 654. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, length of detention, and the nature of the questioning -- specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion." State v. Bey, 112 N.J. 123, 135 (1988). Moreover, "whether a statement is memorialized or not is [also] a factor contributing to the overall determination of a statement's voluntariness." State v. Cook, 179 N.J. 533, 552 (2004).
Here, the court found the officers credibly testified defendant knowingly and voluntarily waived his Miranda rights and gave a statement under non-threatening circumstances. The finding is entitled to our deference because it is supported by credible evidence in the record. Elders, supra, 192 N.J. at 243-44. There is nothing in the record to contradict the court's conclusion that the totality of the circumstances established defendant voluntarily and knowingly waived his Miranda rights and provided un-coerced statements.
Defendant also claims the State failed to present credible evidence corroborating the integrity of his statement. Again, we disagree.
The Supreme Court has explained:
Our corroboration standard requires that the trial court determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy. The corroboration requirement has both legal and factual components. As a matter of law, the trial court initially must determine whether the State has presented independent corroborative evidence of the trustworthiness of the confession. If the State presents some corroboration, the confession is submitted to the fact finder to resolve arguments and speculation about its weight and sufficiency.
[Cook, supra, 179 N.J. at 564-65 (citations and internal quotation marks omitted).]
We conclude from our review of the record, other credible evidence established Fulco's testimony about defendant's statement was trustworthy. At the suppression hearing, Humphrey and Fulco testified John had identified defendant as the shooter. Mojica stated defendant possessed a gun immediately after the shooting and hid it underneath the nightstand at the Connecticut motel, which was where Humphrey found it. Mojica also said three men, who ran from the scene of the shooting, got into her vehicle. Thus, the State satisfied its burden by presenting sufficient independent evidence to corroborate the substance of defendant's custodial statement for purposes of submitting the question of its reliability to the jury.
Defendant also argues his statement should have been suppressed because Fulco impermissibly destroyed his contemporaneous notes. This argument lacks merit.
In W.B., supra, 205 N.J. at 607-08, the Court held all police investigative notes, as of May 27, 2011, must be preserved. That holding was not given retroactive effect, id. at 608, and therefore was not applicable to defendant's interrogation. Also, the court found Fulco testified credibly at the suppression hearing about recording Humphrey's questions and defendant's answers nearly verbatim. After Fulco rewrote his notes in a legible format and submitted them for inclusion in the investigative report, he destroyed his initial notes. Consequently, the investigative report incorporated Fulco's verbatim account of defendant's interrogation.
We find no error in the court's admission of defendant's custodial statement because the State proved beyond a reasonable doubt defendant voluntarily waived his Miranda rights and responded to questioning. Moreover, the State presented adequate independent evidence to corroborate the substance of defendant's statement, and there was no requirement for the preservation of the officer's notes of the interrogation.
We similarly find no basis for the defendant's challenge, for the first time on appeal, to the court's jury charges regarding his custodial statement. Defendant argues the court erred by failing to, sua sponte, deliver an adverse inference charge to the jury regarding the officers' failure to record his statement and preserve the contemporaneous notes. Because defendant failed to raise these assertions below, Rule 1:7-2; Rule 1:7-5, we review for plain error, meaning error "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.
First, defendant contends the court was required to sua sponte instruct the jury that it was permitted to consider the failure by police to record his statement as a factor "in determining the credibility and weight to be given to . . . [his] purported oral incriminations." Essentially, he argues the court should have delivered the model charge concerning the police's failure to record the statement. This charge provides, in pertinent part:
Among the factors you may consider in deciding whether or not the defendant actually gave the alleged statement and if so, whether any or all of the statement is credible, is the failure of law enforcement officials to make an electronic recording of the interrogation conducted and the defendant's alleged statement itself. . . . Therefore, you should weigh the evidence of the defendant's alleged statement with great caution and care as you determine whether or not the statement was in fact made and if so, whether what was said was accurately reported by State's witnesses, and what weight, if any, it should be given in your deliberations. The absence of an electronic recording permits but does not compel you to conclude that the State has failed to prove that a statement was in fact given and if so, was accurately reported by the State's witnesses.
[Model Jury Charge (Criminal), "Statements of Defendant (When Court Finds Police Inexcusably Failed To Electronically Record Statement)" (2005).]
We initially note our recognition of the importance of proper jury charges. "An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). "Correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial." Ibid. (citation and internal quotation marks omitted). Accordingly, "[e]rrors . . . [in jury instructions] are poor candidates for rehabilitation under the" plain error rule. State v. Simon, 79 N.J. 191, 206 (1979).
Where, however, a defendant fails to object to a charge at trial, "there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). We consider the charge "as a whole to determine [the alleged error's] overall effect." State v. Cagno, 211 N.J. 488, 514 (2012), cert. denied, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013) (citation and internal quotation marks omitted).
Applying this standard here, we conclude defendant was not entitled to the cited charge. Rule 3:17(a) requires the custodial interrogation of an individual charged with enumerated crimes, including murder, must be electronically recorded, "[u]nless one of the exceptions set forth in paragraph (b) are present . . . . " R. 3:17(a). One of the exceptions expressly applies to interrogations conducted outside of New Jersey. R. 3:17(b)(v) ("Electronic recordation pursuant to paragraph (a) must occur unless . . . (v) a statement is made during a custodial interrogation that is conducted out-of-state . . . ."). Because the police were not required to record defendant's Connecticut statement, the model charge on the police's inexcusable failure to record custodial statements was inapplicable, and the court did not err by failing to give the instruction to the jury.
Also, even though defendant was not entitled to the specific charge on failure to record the statement, the court instructed the jury on the permissible uses of his statement, in accordance with Model Jury Charge (Criminal), "Statements of Defendant" (2010). Specifically, the court told the jury that it was required "to determine whether or not the statement was actually made by the defendant and if made whether the statement or any portion of it is credible." It also instructed the jury to recall
the manner in which the defendant was questioned as well as the manner in which [Fulco] recorded the questioning . . . .
In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made as well as all of the evidence in this case relating to this issue.
If after consideration of all of these factors you determine that the statement was not actually made or that the statement is not credible, then you must disregard the statement completely. If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and
credible.The court, therefore, sufficiently conveyed to the jury that it was permitted to consider the manner of its recordation in determining whether the statement was actually made and, if so, whether it was credible.
Second, for the first time on appeal, defendant contends the court erred when it failed to instruct the jury about Fulco's destruction of his contemporaneous notes. We reject this argument as well. The Supreme Court determined that the rule against destroying contemporaneous notes would not be effective until May 27, 2011 and, therefore, the charge is inapplicable to notes destroyed or lost before that date. W.B., supra, 205 N.J. at 608-09.
We find no error in the court not charging the jury, sua sponte, on the officers' failure to record defendant's out-of-state custodial interrogation and preserve the contemporaneous notes.
III.
Defendant also contends the court erred by denying his motion to suppress the handgun and ammunition magazine found in the Connecticut motel room because the State failed to establish Mojica's consent to the warrantless search was voluntary and lawful. We reject the argument and affirm the court's denial of his suppression motion.
The court credited Humphrey's version of events surrounding the search because he was candid and forthright with his responses. It discredited Mojica's testimony, finding she was "a savvy and street smart person" who "cooperated fully with the police when it was in her best interest to do so." After summarizing Humphrey's and Mojica's conflicting versions of events, the court held it was "satisfied that the State has proven by clear and convincing evidence that Ms. Mojica knowingly and voluntarily gave consent to Detective Humphrey for the search of the motel room."
In an appeal from a suppression motion, we will uphold the trial court's findings if they are supported by sufficient credible evidence present in the record. See State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). In our review, we defer to the trial court's credibility findings. State v. Locurto, 157 N.J. 463, 471 (1999).
"Under the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of our State Constitution, judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search . . . ." State v. Johnson, 193 N.J. 528, 552 (2008). "Therefore, when the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it f[ell] within one of the few well-delineated exceptions to the warrant requirement." Ibid. (citations and internal quotation marks omitted) (alteration in original). Accord Mann, supra, 203 N.J. at 337-38.
"Federal and New Jersey courts recognize the consent to search exception to the warrant requirement." State v. Lamb, 218 N.J. 300, 315 (2014) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Domicz, 188 N.J. 285, 305 (2006)). It is the State's burden "to establish by clear and positive testimony[,]" State v. King, 44 N.J. 346, 352 (1965), that the consent was voluntary. Domicz, supra, 188 N.J. at 307. "Voluntariness is a question of fact to be determined from all the circumstances . . . ." Schneckloth, supra, 412 U.S. at 248-49, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875. While an "essential element" of a voluntary search generally includes the consenting party's knowledge that he or she had the right to refuse consent, Domicz, supra, 188 N.J. at 307, only the target of the investigation is required to be so informed. See State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.) (person having apparent authority to consent to a search need not be informed of the right to refuse consent), certif. denied, 180 N.J. 456 (2004).
Here, the trial court credited Humphrey's version of events and discredited Mojica's, and its credibility determinations are entitled to deference. Locurto, supra, 157 N.J. at 471. The court determined Mojica's testimony about her subjective belief that she had no choice but to consent to the search was not credible. Moreover, the record supports the court's determination she consented to the search knowingly and voluntarily after being informed she had the right to refuse. Therefore, the court properly admitted the handgun and ammunition magazine. See Elders, supra, 192 N.J. at 243-44 (high degree of deference due to lower court's factual findings supported by the record).
Defendant additionally argues the State failed to establish Mojica was authorized to consent to the search. We reject his argument as being without any legal support.
"A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." State v. Suazo, 133 N.J. 315, 320 (1993) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). "That authority to consent arises from the mutual use of the property by persons generally having joint access or control for most purposes . . . . " Ibid. (internal citation and quotation marks omitted).
Here, the record supports the conclusion Mojica possessed common authority over the motel room. At the suppression hearing, she testified she registered the room under her name and jointly occupied it with her son and defendant. Moreover, at the time the officers knocked on the door, they knew the room was registered under Mojica's name and she opened the door and allowed them inside. Therefore, it was reasonable for them to believe she possessed common authority over the room. See State v. Kaltner, 420 N.J. Super. 524, 536 (App. Div. 2011) ("'Appearance of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,' informs the court's assessment of the officer's search.") (quoting Farmer, supra, 366 N.J. Super. at 313), aff'd o.b., 210 N.J. 114 (2012).
We therefore affirm the court's denial of defendant's motion to suppress the handgun and ammunition magazine that were seized during the warrantless search.
IV.
Defendant next argues the court erred by instructing the jury on flight because the trial evidence established he fled after the shooting not because of consciousness of guilt, but because he and Mojica routinely stayed in Connecticut together. We find no merit to this argument.
During the charge conference, the State requested a flight charge. The court granted the request, finding defendant and Mojica routinely stayed in a Connecticut motel during weekends but, after the shooting, he intended to stay longer.
During the final jury charge, the court instructed on flight. The court's charge substantially tracked the model charge. See Model Jury Charge (Criminal), "Flight" (2010).
Whether there exists a sufficient evidentiary basis to support a flight charge is within the trial judge's discretion, and thus our review is for an abuse of discretion. State v. Long, 119 N.J. 439, 499 (1990). An instruction on flight "is appropriate when there are 'circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010) (alteration in original) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). "The jury must be able to find departure and 'the motive which would turn the departure into flight.'" Id. at 176 (quoting State v. Wilson, 57 N.J. 39, 49 (1970)).
The probative value of flight evidence
depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
[Mann, supra, 132 N.J. at 420 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).]
Here, Mojica and John testified defendant ran immediately after the shooting, armed with a handgun. It was undisputed defendant made his way to Connecticut within a short time.
Given those circumstances, the court did not abuse its discretion by determining an instruction on flight was appropriate because the evidence reasonably supported an inference defendant fled with a consciousness of guilt to avoid apprehension.
V.
Finally, defendant contends his sentence on the aggravated manslaughter conviction to life imprisonment was manifestly excessive. We disagree.
At sentencing, the court granted the State's motion for an extended-term sentence, finding defendant met the persistent offender criteria set forth at N.J.S.A. 2C:44-3(a). He was twenty-seven years old at the time of the present crime. When he was twenty-two years old, he was separately convicted of robbery and drug possession within 1000 feet of a school zone. On the robbery conviction, he had been released from prison for three months before committing the current offense. Additionally, the court found he had "an extensive prior criminal record," beginning as a juvenile and continuing into adulthood, with nine arrests as an adult, four indictable convictions, multiple parole and probation violations, and numerous remands to state prison.
N.J.S.A. 2C:44-3(a) defines a "persistent offender" as
a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The court weighed the aggravating and mitigating factors to determine the appropriate length of the extended-term sentence, and whether to impose parole ineligibility. It found three aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court rejected defendant's contention that mitigating factor four applied, finding the jury considered and rejected he acted in defense of Charles. It found no mitigating factors, and concluded the aggravating factors substantially outweighed the mitigating factors. Moreover, the court stated: "Since prior stints in prison did not deter defendant from violating the law, a lengthy prison term is clearly necessary for the protection of the public." On the aggravated manslaughter conviction, the court sentenced defendant to the maximum term of life imprisonment, subject to an eighty-five-percent parole disqualifier under NERA, which is sixty-three years and nine months.
In reviewing a sentencing decision, we (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence"[;] (2) "require that the factfinder apply correct legal principles in exercising its discretion"[;] and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
To impose a discretionary extended-term sentence, a judge must adhere to the following principles:
The sentencing court must first . . . review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of
the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.Here, the judge properly applied that framework and sentenced defendant at the top of the enhanced sentence range. N.J.S.A. 2C:43-7(a)(1) (permissible range for extended-term sentence on aggravated manslaughter conviction "shall be between 30 years and life imprisonment").
[State v. Pierce, 188 N.J. 155, 168 (2006).]
Defendant concedes he was eligible for an extended term based on his prior convictions. He argues, however, the judge failed to apply mitigating factors four and five. See N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct, though not a defense); N.J.S.A. 2C:44-1(b)(5) (the victim induced or facilitated defendant's conduct). Because defendant did not argue mitigating factor five below, he must show plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
We conclude the record did not support either mitigating factor. Mitigating factor four did not apply because there was no evidence the unarmed Bermudez brothers were likely to fatally attack Charles or defendant. Thus, defendant was not justified in using deadly force against them. Nor did the evidence show Jaime induced defendant to shoot him. Rather, a fight between Jaime and Charles precipitated the shooting. For that reason, mitigating factor five also did not apply.
Finally, defendant claims the court failed to consider the real-time consequences of NERA. He is incorrect. The court considered the impact of NERA on the life imprisonment sentence it imposed, stating "the eighty-five percent to be served on a life sentence represents eighty-five percent of seventy-five years." See N.J.S.A. 2C:43-7.2(b) (for purposes of calculating the period of parole ineligibility required by NERA, "a sentence of life imprisonment shall be deemed to be 75 years"). It further found defendant's recidivist behavior necessitated "a lengthy prison term." Having reached the conclusion a life imprisonment sentence on the aggravated manslaughter conviction was necessary, the court had no discretion to impose a lesser parole ineligibility term given NERA's mandate of a "minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a), (d)(2).
Consequently, we find no error in the court's sentencing of defendant on the aggravated manslaughter conviction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION