Opinion
DOCKET NO. A-3137-12T2
04-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CURTIS R. JONES, a/k/a CURTIS A. JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-09-1457. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Curtis Jones was convicted by a jury of the following offenses: first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count five); and third-degree hindering an investigation, N.J.S.A. 2C:29-3(b)(4) (count six). After merging count four with count three and counts two and three with count one, the trial court sentenced defendant to life in prison without parole on count one. On counts five and six, the trial court imposed five years of incarceration on each count to run consecutive to each other but concurrent to count one. Defendant was also ordered to pay $5000 in restitution.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT BECAUSE THE DETECTIVES FAILED TO CEASE QUESTIONING OR RE-ADMINISTER MIRANDA RIGHTS AFTER DEFENDANT INVOKED HIS RIGHT TO REMAIN SILENT.
POINT II
THE COURT SHOULD HAVE EXCUSED JUROR NUMBER THREE IMMEDIATELY WHEN IT WAS DISCOVERED THAT THE JUROR HAD ATTEMPTED TO CONTACT AND BEFRIEND ONE OF THE COURT'S OFFICERS. (Partially Raised Below)
POINT III
THE COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE ON COUNT SIX. (Not Raised Below)
POINT IVHaving reviewed the facts and the applicable law, we affirm.
THE RESTITUTION ORDER SHOULD BE VACATED AND THE MATTER REMANDED FOR A HEARING REGARDING DEFENDANT'S ABILITY TO PAY. (Not Raised Below)
We discern the following facts from the record. Defendant shot and killed his cousin during a robbery in North Brunswick, New Jersey. Following the shooting, defendant traveled to Atlantic City, New Jersey, where he was apprehended by police.
Defendant was subsequently interviewed by a Middlesex County Prosecutor's Office Investigator and a North Brunswick Detective at the Atlantic County jail. There, he was informed of his charges for murder, possession of a weapon, and robbery. The interview was recorded and played for the jury at trial.
Defendant was read his Miranda rights, and he signed a preprinted Miranda waiver card. Defendant recounted the events that led to the shooting. He stated he was in the same apartment as the victim when he heard a window open and a gunshot. After hearing the gunshot, defendant ran out of the apartment. The interviewers then confronted defendant with contradictory evidence and asked if he was being truthful. This exchange followed:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
We were provided a copy of defendant's interview transcript and recording. We note there were discrepancies between the transcript and audio recording, and our interpretation of the conversations follow. --------
Interviewer 1: I'm being straight with you, okay.
Defendant: I'm straight with you too.
Interviewer 1: You're not.
Defendant: Yes I am.
Interviewer 1: No you're not.
Defendant: I need to talk to my baby's mom.
Interviewer 1: And at the end, and at the end of the day, excuse me?
Defendant: I need to talk to my baby mom.
Interviewer 1: Well, who Ta Ta?
Defendant: Latara.
Interviewer 1: Latara. Matthews?
Defendant: Yeah.
Interviewer 2: Yeah[,] we spoke to her too.
Defendant: I know.
Interviewer 2: I know you spoke, I knew if we spoke to her she would be speaking to you.
Defendant: No[,] actually I didn't speak to her yet.
After this exchange, the interviewers continued to confront defendant about his account's inconsistencies and asked if his statements were truthful. This conversation then transpired:
Defendant: I need to talk to my baby mom.The interviewers then stopped the questioning as defendant spoke with his child's mother in private. After defendant returned, the interviewers continued their questioning. Defendant was informed "you still have your rights and the same rights that I read to you at the beginning of our interview is still in place at any time during this conversation if you like to exercise your rights you can right?" Defendant responded "[y]es." Defendant then recanted his earlier account of the events and admitted he shot the defendant. Defendant stated that the victim had taken money from him, and defendant returned to retrieve it. According to defendant, the victim grabbed the gun and it went off.
Interviewer 1: I have no control over that.
Defendant: I'll tell you what you want to know.
Interviewer 1: What do you want to do, you want to call your baby's mom? Alright well listen, I, here's what's gonna have to happen. We're gonna have to take a break. Okay I got to stop this; I'm not allowed to have any conversation with you at all until we come back in here. And I'm gonna let you talk to your baby's mom privately, okay? Alright give me one second see if I can arrange that.
Interviewer 2: I've been doing this a long time, I wouldn't lie to you man. Especially with something this important. I don't take this lightly. I ain't got any tissues.
Defendant: (Inaudible) Unless I talk to my baby mom first.
Defendant moved to suppress the statement he gave to police. Defendant argued his requests to speak with his child's mother were invocations of his Miranda rights, and the interviewers should have ceased questioning him once he made this request. The trial court denied defendant's motion, stating a request during questioning by an adult to speak to another adult does not imply or suggest that individual desires to remain silent.
During defendant's trial, but before deliberations, the trial court informed the parties that juror number three had sent a Facebook friend request to a Sheriff's Officer. The trial judge questioned the Sheriff's Officer to determine whether this incident affected juror number three's ability to perform her duties. The Sheriff's Officer stated he did not know juror number three but admitted they shared a mutual friend. He stated he had denied juror number three's friend request, but then clarified that he accidentally accepted the request, but then immediately unfriended her. The Sheriff's Officer emphasized he did not have any conversation with juror number three through Facebook during the proceedings.
The trial judge also questioned juror number three. She stated the Sheriff's Officer accepted her friend request. She stated she made a comment to him on Facebook stating "[g]reat detective work," but the Sheriff's Officer never responded. She explained the comment was unrelated to the case and was meant to tease a third-party. She confirmed she did not know the Sheriff's Officer previously, and the request was "completely social." The trial judge inquired whether her Facebook interaction would have any effect on her ability to be fair and impartial in the proceedings, to which she responded "[n]o."
The trial judge found the Facebook interaction between juror number three and the Sheriff's Officer was purely social, and he declined to remove her for cause. The trial judge also stated the Sheriff's Officer would no longer be assigned to wait at the jury room door to respond to questions or transport them. Defendant's counsel failed to object and deferred to the trial court's discretion. The trial judge then addressed the entire jury and reinstructed them not to discuss the case outside of the deliberation room.
At defendant's sentencing hearing, defendant moved for a new trial. Defendant's counsel argued he should have asked for juror number three to be removed for disobeying and directly disregarding the court's instructions not to contact anyone in the courtroom. The court denied the motion, stating its original instruction only limited jurors from conversing with anyone about the case. The court stated its instruction did not prohibit ordinary social contact, and concluded juror number three's Facebook friend request was social and not inherently improper.
We first address defendant's argument the trial judge's denial of his motion to suppress his statement was erroneous. Defendant argues his request to speak with his child's mother was an invocation of his right to remain silent, and the interviewers violated that right when they began questioning defendant immediately after the conversation between defendant and his child's mother ended without re-administering his Miranda warnings. Defendant argues the portion of defendant's statement after the invocation of his right to silence must be suppressed and his conviction reversed.
We note the trial judge's order denying defendant's motion to suppress was not designated in the notice of appeal. Only judgments or orders designated in the notice of appeal are subject to our review. See Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f) (2016); see also Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41, 42 (1994). However, we choose to overlook defendant's procedural failure because the motion to suppress is directly related to the conviction under review and implicates defendant's constitutional rights.
In reviewing a motion to suppress, we "defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015). However, when reviewing a motion to suppress for violation of Miranda, this court supplements its ordinary standard of review with a "searching and critical" inspection to ensure constitutional rights have not been violated. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)), certif. denied, 178 N.J. 35 (2003). The "trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference," and are therefore "reviewed de novo." State v. Gamble, 218 N.J. 412, 425 (2014).
In analyzing a defendant's invocation of his or her right to counsel or silence, New Jersey courts apply "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behavior." State v. Diaz-Bridges, 208 N.J. 544, 564 (2011) (footnote omitted). If the invocation is clear and unambiguous, it must be "scrupulously honored." Ibid. If the invocation is equivocal or ambiguous, the officers are permitted to clarify the defendant's ambiguous words or acts. Id. at 564-65. The court's inquiry "demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right [to remain silent] had been invoked." Id. at 565.
Requests by an adult to speak with someone other than an attorney generally "do not imply or suggest that the individual desires to remain silent." Id. at 567. In State v. Martini, 131 N.J. 176, 229-30 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540 (2004), the defendant, arrested on murder charges, waived his Miranda rights and told police he would talk to them after he was allowed to speak with his co-defendant girlfriend. The defendant wished to speak with his girlfriend to inform her he planned to cooperate with the police. Id. at 230.
Police allowed the defendant to speak with his girlfriend for three minutes, and then reinitiated the interview without repeating the Miranda warnings. Ibid. The defendant then confessed to the murder. Ibid. The Supreme Court concluded the defendant's request to speak with his girlfriend was not an invocation of his right to remain silent because he expressed a willingness to cooperate and did not wish to speak with his girlfriend to seek advice but rather wished to tell her his plan to cooperate. Id. at 233.
Our Supreme Court recently undertook an analysis on whether a defendant invoked his right to remain silent after repeated requests to speak with his uncle. State v. Maltese, 222 N.J. 525, 534-35 (2015). In Maltese, the defendant was given his Miranda rights and questioned regarding his involvement in his parents' murder. Id. at 534. The defendant was asked where his parents' bodies were located. Ibid. Before answering, the defendant requested to speak with his uncle because "[he did not] know where to go, what to do from here." Ibid. The defendant further stated he considered his uncle better than an attorney and asked whether his conversation with his uncle would be protected by the "lawyer-client privilege." Id. at 536-37. After multiple requests to speak with his uncle and the defendant's continued refusal to speak, the officer consented to his request. Ibid. After speaking with his uncle and receiving new Miranda warnings, the defendant admitted to the murders. Id. at 537-38. The defendant filed a motion to suppress his statement to the officers. Id. at 538. The trial judge granted the defendant's motion with respect to the statements to his uncle, but denied the motion as to his statements to police. Ibid. The defendant was subsequently convicted of first-degree murder and second-degree manslaughter, among other charges. Id. at 540. On appeal, the Supreme Court found the defendant invoked his right to remain silent during the officer's questioning when he requested more than ten times to speak with his uncle. Id. at 546. The Court concluded the defendant invoked his right to remain silent because he unequivocally asserted he wanted the questioning to stop until he spoke with his uncle, and that he wanted to consult with his uncle to determine "what to do." Ibid.
Here, we conclude defendant's requests to speak with his child's mother were not an invocation of his right to remain silent. We determine the facts in this case are more akin to Martini than Maltese. Defendant made three requests to speak with his paramour. Defendant's first request plainly stated he wished to speak with his "baby's mom." This request was not accompanied by a demand for the questioning to stop nor did the request infer defendant was seeking advice from his child's mother. The interviewers could not have reasonably inferred from defendant's innocuous statement he desired to remain silent.
Defendant's second request to speak with his child's mother again went unheeded. Only after defendant offered to tell the interviewers what they "want[ed] to know," was his request granted. This request was not accompanied by a demand for the questioning to stop nor did it infer defendant sought legal counsel or even advice from his child's mother. It was merely a request similar to asking for a cigarette or a soda before confessing. Again, the interviewers could not have reasonably inferred defendant wished to remain silent from this statement, and defendant had already agreed to tell the investigators what they wanted to know.
Defendant's third request to speak with his child's mother was made after one interviewer went to setup the conversation, but before the phone call actually occurred. This request again was not in the form of a request for the questioning to stop so defendant could seek counsel or advice. After this final statement, defendant spoke with his child's mother in private.
After a critical inspection of the facts, we conclude the trial judge properly denied defendant's motion to suppress; we determine defendant never made a request to cease questioning in order to obtain advice. We do not conclude defendant was deprived of his rights especially where, after speaking to his child's mother, he was told he still had all the rights previously discussed.
Defendant next argues the trial judge's failure to dismiss juror number three was error. Defendant also contends the trial judge did not properly ask probing questions to the juror about the Facebook communications. Additionally, defendant contends the trial judge failed to voir dire each individual juror to determine what he or she knew about the incident and whether he or she could remain impartial.
Here, the trial judge conducted a voir dire of the Sheriff's Officer and juror number three to determine whether juror number three had been exposed to any extraneous information. Defendant declined to request juror number three be excused. Accordingly, defendant's arguments are reviewed under the plain error rule and should be disregarded unless "[they are] of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Defendant's motion for a new trial at sentencing did not mitigate his failure to request for juror number three to be excused during trial because the trial court was no longer in a position to address, and potentially cure, defendant's concerns. Defendant's late objection made an effective remedy impossible as the jury had already convicted. See State v. Mars, 107 N.J. Super. 36, 40-41 (stating the defendant's argument was analyzed under R.R. 1:5-1(a),(b) [precursor to R. 2:10-2] because his objection and motion for mistrial regarding a police identification were made too late for the court to make a protective ruling to avert any undue prejudice), certif. denied, 54 N.J. 514 (1969), 55 N.J. 319 (1970).
"The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). "An appropriate voir dire of a juror allegedly in possession of extraneous information mid-trial should inquire into the specific nature of the extraneous information, and whether the juror intentionally or inadvertently has imparted any of that information to other jurors." State v. R.D., 169 N.J. 551, 560 (2001) (emphasis omitted). Depending on the juror's answers to these questions, the trial judge "must then determine whether it is necessary to voir dire individually other jurors to ensure the impartiality of the jury." Ibid. The decision to voir dire the entire jury "best remains a matter for the sound discretion of the trial court." Id. at 561.
Here, the trial judge's determination juror number three could remain as an impaneled juror does not rise to the level of error that could produce an unjust result. After learning of the possible juror taint, the trial judge immediately conducted voir dire of juror number three and the Sheriff's Officer to determine whether juror number three had obtained extraneous information about the case. The questioning revealed no such information.
Juror number three's comment, "[g]reat detective work," however, deserved some investigation. Juror number three explained:
Juror: [W]e had found out information about someone, so we were teasing the person.
Judge: Unrelated to this case?
Juror: Completely unrelated to the case, completely related to the person who the comment was made to.
Judge: When you say "detective" —
Juror: It was in a joke as in, like, he wanted to know how we found out information about them and he didn't.
Judge: It wasn't about any criminal?
Juror: Nothing to do with this case whatsoever.
Judge: It was social?
Juror: It was completely social.
Based on juror number three's explanation, it was within the trial judge's discretion to conclude that the comment was directed to the mutual friend or someone else and did not concern defendant or his alleged crime. Because the trial judge properly found the interaction between the juror and Sheriff's Officer did not convey extraneous information, it was also within the judge's discretion to decline to voir dire the entire jury.
Defendant next argues that under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), his prison term under count six should run concurrent to his prison term under count five. He argues: the two crimes were not independent of one another; there were not multiple victims; and there were not numerous convictions. Defendant concedes that he failed to raise this issue before the trial court. Accordingly, it falls under the plain error rule, and should be disregarded unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
We affirm a defendant's sentence unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
In Yarbough, our Supreme Court established factors for application of consecutive sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Yarbough, supra, 100 N.J. at 643-44 (footnotes omitted).]
A sentencing court must assess the Yarbough factors when determining whether consecutive sentences are warranted. State v. Randolph, 210 N.J. 330, 353 (2012). Absent such analysis, we generally decline to review the trial court's decision and remand to create a separate statement of reasons. Ibid.
Case law does not require us to remand to the trial judge to explicitly go through the factors when it is clear from the record that consecutive sentences are warranted. See State v. Molina, 168 N.J. 436, 442 (2001); see also State v. Perry, 124 N.J. 128, 177 (1991) (affirming a sentence even though the trial court failed to separately state its reasons for not imposing concurrent sentences when it was obvious from the record defendant's crimes were independent acts and clearly fit within the Yarbough guidelines).
On counts five and six, the trial court imposed five years of incarceration on each count to run consecutive to each other. The judge did not describe the Yarbough factors he considered, as he should have done. However, we need not reverse and remand as the basis for the consecutive sentences was clear from the record. The third-degree hindering prosecution charge stems from his concealment or destruction of the murder weapon, which he told the officers he left in an acquaintance's apartment, which was not so. The third-degree hindering investigation charge stems from defendant providing false information to police during questioning, specifically telling police the murder was gang-related when it was not. Thus, these are two distinct events, not multiple sentences for the same transaction. For these reasons, we affirm defendant's sentence.
Finally, defendant contends the trial judge improperly imposed restitution without an analysis of defendant's ability to pay. N.J.S.A. 2C:44-2(b)(2) provides that "[t]he court shall sentence a defendant to pay restitution . . . if . . . [t]he defendant is able to pay or given a fair opportunity, will be able to pay restitution." Defendant admits he failed to raise this issue below, and accordingly, we review it under the plain error rule, and disregard it unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The record establishes defendant was previously employed and had received income from unemployment. Defendant did not object to the payment of restitution and did not argue he was unable to pay. Thus, defendant has not shown that the order to pay limited restitution is clearly capable of causing an unjust result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION