Opinion
DOCKET NO. A-1798-10T3
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES D. DIXON, Defendant-Appellant.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino, and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0358.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
After a bench trial in March 2010, defendant was found guilty of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); false imprisonment, N.J.S.A. 2C:13-3; fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The court sentenced defendant to an aggregate term of twenty-five years of incarceration.
On appeal, defendant primarily argues that the incriminating statement he gave to the investigating police officers, which became a key part of the State's proofs at trial, should have been suppressed for a host of reasons, including the alleged inadequacy of the Miranda warnings that were given to him. Defendant further contends that a portion of the judgment of conviction must be corrected because it includes a five-year consecutive sentence for criminal restraint, a third-degree crime, whereas he was found guilty on that particular count of only the lesser-included offense of false imprisonment, a disorderly persons offense. Lastly, defendant asserts that certain sentences should have merged, that the sentences all should have been concurrent instead of consecutive, and that the sentencing judge also failed to consider an applicable mitigating factor.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State has conceded this particular point.
For the reasons that follow, we reject defendant's claim that his incriminating statement was involuntary and that the Miranda warnings issued to him were inadequate to apprise him of his rights. Consequently, we affirm the denial of his suppression motion and his ensuing conviction. However, we remand the case for resentencing because the aggravated assault conviction should merge into the robbery conviction.
I.
On June 6, 2008, defendant James Dixon entered a Metuchen home in order, as the State alleged, to carry out a burglary. An occupant of the home, Jonathan Ryder, encountered defendant after hearing noise. Defendant struck Ryder, breaking bones in Ryder's face. Police officers responding to a neighbor's 9-1-1 call apprehended defendant while he was hiding in a room upstairs in the home. Defendant was found with a knife in his pants pocket. Although Ryder could not recall what had happened, a shoelace was tied around Ryder's wrist indicating that defendant had attempted to tie him up. Later that day, defendant gave a statement to police officers confessing to most of the elements of the crimes he committed at the residence.
A Middlesex County grand jury subsequently indicted defendant and charged him with, among other things, first-degree robbery. Defendant moved to dismiss the indictment, arguing that there was insufficient proof that he was armed during the commission of a robbery. The trial court granted that motion in part, agreeing that the State had not made a prima facie showing that defendant was armed for purposes of the robbery statute.
Defendant also moved to suppress his statement to the police. After conducting an evidentiary hearing and observing a videotape of defendant's interrogation, the trial court denied the suppression motion. The court was satisfied that defendant's statement was voluntary, and that the Miranda warnings given to him were sufficiently clear and understood.
On leave granted, we reversed the trial court's order dismissing the State's allegation of an armed first-degree robbery. State v. Dixon, No. A-3193-08, (App. Div. Jan. 14, 2010). We did so in light of supervening case law, see State v. Rolon, 199 N.J. 575 (2009), clarifying the meaning of the term "armed" under the robbery statute. Dixon, supra, slip op. at 4-5.
The grand jury then re-indicted defendant, charging him with first-degree robbery, second-degree burglary, second-degree aggravated assault, third-degree criminal restraint, fourth- degree unlawful possession of a weapon, and fourth-degree resisting arrest.
Before jury selection was completed, defendant elected to waive his right to a jury trial. Consequently, a bench trial was conducted on March 26, 30, and 31, 2010. The State presented testimony from Ryder, the neighbor who placed the 9-1-1 call, a physician who treated Ryder at the emergency room, and several police officers. The State also played defendant's audiotaped statement. Defendant declined to testify, and he presented no witnesses.
Defendant does not contest on appeal the court's decision granting his request for a non-jury trial.
At the conclusion of the proceedings, the judge announced his verdict, finding defendant guilty of second-degree robbery, as a lesser-included offense of first-degree robbery; second-degree burglary; third-degree aggravated assault, as a lesser-included offense of second-degree aggravated assault; the disorderly persons offense of false imprisonment, as a lesser-included offense of third-degree criminal restraint; fourth-degree resisting arrest by flight; and fourth-degree unlawful possession of a weapon.
The State moved to have defendant, who has an extensive prior record of adult convictions, sentenced to an extended term pursuant to the "No Early Release Act" ("NERA"), N.J.S.A. 2C:43-7.2, and N.J.S.A. 2C:44-3(a).
On May 24, 2010, the court sentenced defendant to an aggregate of twenty-five years of incarceration. The court made special note of defendant's extensive criminal history, amounting to what the court described as a "life of crime." In particular, the court found the following aggravating factors under N.J.S.A. 2C:44-1: the risk of defendant committing another offense, defendant's criminal record and the seriousness of his prior offenses, the need for deterrence, Ryder's age,and, to a lesser extent, the possibility that defendant would regard a fine as simply a business expense. On the other hand, the court found that there were no mitigating factors that would justify a lower sentence. In particular, the court noted that defendant's age of fifty-two was not so old that it should be considered a mitigating factor. The judge found that because the aggravating factors substantially outweighed the mitigating factors, an extended term sentence under N.J.S.A. 2C:44-3 was appropriate.
Ryder is over sixty years old.
More specifically, the court sentenced defendant to ten years for the burglary conviction, to be concurrent with a twenty-year sentence for the robbery conviction. The court found that the aggravated assault was "separate, apart, distinct [from the other offenses,] and that warrants and deserves a consecutive five-year term."
Inadvertently, the court also imposed a sentence upon defendant for criminal restraint, although the conviction on that count was for the lesser-included offense of false imprisonment. This portion of the sentence was for five years, to run concurrently with the five-year term for aggravated assault.
Lastly, the court sentenced defendant to eighteen months of imprisonment each for the resisting arrest and weapons convictions, with both of those terms to run concurrently with the five-year term previously noted.
II.
Through his counsel on appeal, defendant presents the following arguments:
POINT IIn addition, defendant personally makes the following supplemental argument in his pro se brief:
DIXON'S STATEMENT SHOULD BE SUPPRESSED AND A NEW TRIAL GRANTED BECAUSE HE DID NOT RECEIVE CLEAR, FULL, AND EFFECTIVE MIRANDA WARNINGS AND, IN THE ALTERNATIVE, WAS IN NO CONDITION TO KNOWINGLY AND INTELLIGENTLY WAIVE WITH MARGINAL WARNINGS. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PARA. 1
A. Dixon Was Not Clearly, Fully, and Effectively Warned Because Various Tricks Were Used to Impede His Understanding: the Warnings Were
Embedded in Small Talk; a Detective Read the Warnings Quickly and Without Making Eye Contact; Dixon Was Prevented from Reading the Warnings Himself; Dixon Was Never Asked if He Wanted to Talk; and Dixon's Waiver Was Treated as a Foregone Conclusion (not raised below)
B. Dixon Was Not Clearly, Fully, and Effectively Warned by Being Told that He Had a "Right to Remain Silent" Because the Word "Right" is too Advanced for Suspects, Who Should Be Told that They Need Not Talk and that Silence Will Not Be Used Against Them (not raised below)
C. Dixon Was Not Clearly, Fully, and Effectively Warned by Being Told that He Had a Right to Counsel "While" Being Questioned Because He Also Should Have Been Told About His Right to Counsel Before Questioning (not raised below)
D. Dixon Was Not Clearly, Fully, and Effectively Warned by Being Offered "Appointed" Counsel Because that Word Is Too Advanced for Suspects, Who Should Be Told that They May Have a Free Lawyer (not raised below)
E. Dixon Was Not Clearly, Fully, and Effectively Warned by Being Told that He Could "Exercise These Rights" at Any Time Because that Abstract Legalese is Too Advanced for Suspects, Who Should Be Told that They May Stop the Interrogation (not raised below)
F. Even if the Warnings Are Considered Adequate, They Were Too Marginal to Conclude Beyond a Reasonable Doubt that Dixon, Who Was Suffering from the Effects of Heroin, Made a Knowing and Intelligent Waiver
G. The Time Has Come to Mandate Empirically-Supported Language to Clearly, Fully, and Effectively Warn Suspects and to Mandate Additional Procedures to Better Ensure Knowing, Voluntary, and Intelligent Waivers (not raised below)
H. The Admission of Dixon's Statement Was Harmful Because the Court Explicitly Relied on It in Finding Dixon Guilty of Five Counts, and Because Dixon's Admitted Purpose in Entering the House, to Steal, May Have Contributed to the Assault Conviction by Providing a Motive to Strike the Homeowner
POINT II
DIXON SHOULD BE RESENTENCED TO NO MORE THAN SIX MONTHS FOR FALSE IMPRISONMENT, A DISORDERLY PERSONS OFFENSE, BECAUSE HIS FIVE-YEAR SENTENCE IS ILLEGAL. (Not raised below)
POINT III
THE ASSAULT SHOULD BE MERGED INTO THE ROBBERY TO AVOID IMPOSING THREE SENTENCES -- FOR ROBBERY, ASSAULT, AND FALSE IMPRISONMENT -- FOR THE TWO ACTS OF STRIKING THE COMPLAINANT AND TYING HIS WRIST. U.S. CONST. AMEND. V, XIV; N.J. CONST. [sic]; N.J. CONST. ART. I, PARA. 1, 11
POINT IV
DIXON SHOULD BE RESENTENCED SO THAT IMPROPERLY CONSECUTIVE AND EXCESSIVE SENTENCES CAN BE RECONSIDERED
A. The Court Was Unreasonable in Running the Assault And False Imprisonment Sentences Consecutive to the Robbery Sentence Because the Offenses Were
Committed in a Single Episode, Against a Single Person, and Through the Same Acts, and the Court Failed to Adequately Explain Its Reasons for the Consecutive Sentences
B. The Court Was Unreasonable in Refusing to Consider Dixon's Relatively Advanced Age of Fifty-One, Leading the Court to Over-estimate the Risk of Reoffending and the Need for Deterrence, and the Court Should not Have Weighed the Inappropriateness of a Noncustodial Sentence Because Dixon Was Subject to a Mandatory Prison Term
DEFENDANT'S CONVICTION SHOULD BE SET ASIDE BECAUSE HIS CONFESSION WAS BEATEN OUT OF HIM BY THE POLICE, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE NEW JERSEY UNITED STATES CONSTITUTION [sic]We address these points, in turn.
A.
The principal thrust of defendant's appeal is that his confession was involuntary, and that the police used unfair tactics to provoke him to incriminate himself. As part of his claim, defendant makes a broadside attack upon the adequacy of the Miranda warnings that were provided to him, arguing that those warnings are not worded in a clear enough manner. He also maintains that the warnings were read by the police in this case too rapidly, embedded in "small talk," and without giving him a chance to read the warnings himself. He further claims that he was under the influence of heroin at the time the warnings were read, and thus could not have intelligently waived his right to remain silent. We reject these contentions.
The police interrogation was conducted at the Metuchen Police Station on the same day as the invasion of Ryder's home and defendant's arrest. The questioning was performed by Lieutenant David Irizarry and then-Detective Arthur Flaherty from the Metuchen Police Department. Lieutenant Irizarry began the questioning by asking defendant if he wanted a drink of water, and made small talk about rolling cigarettes. Defendant was allowed to roll a cigarette and smoke while speaking with the two officers.
By the time of trial, Flaherty's rank was Sergeant.
Lieutenant Irizarry then issued a Miranda warning to defendant in the following exchange:
Q. How old are you, James?The Miranda warning was read directly from the Metuchen Police Department's standard warning card.
A. Fifty one.
Q. How old?
A. Fifty one.
Q. Fifty one. Alright, James, before we get started . . . excuse me I just need a pen . . .
Q. You have the right to remain silent. Anything you say can be used against you in a Court of Law. You have the right to talk to a lawyer and have a lawyer present with you while you're being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish one. And you can decide to exercise these rights at any time. You understand them, James?
A. Yes, sir.
The record does not make explicit whether officers had already informed defendant of his Miranda rights earlier that day.
After another brief exchange where Lieutenant Irizarry checked defendant's leg for an injury, Lieutenant Irizarry then said to defendant:
Q. James, what I want you to do is I just want you to sign here saying that I read you your rights okay, and that you understand them. Right where the 'X' is.
. . . .
Q. Yeah. James, obviously . . . you know you're under arrest you have some charges pending you obviously know that, correct?
A. Yes.
Q. Okay. I just want to get some information from ya [sic] alright before we get started.
Defendant then gave a statement, recounting the events of June 6, 2008, incriminating himself as to many aspects of the home invasion. In his statement, defendant also discussed his heroin habit. He told the officers that he had been using heroin since 2000. The officers were aware that defendant had used heroin that day.
Between two-and-a-half and three hours had passed from the time defendant was caught in Ryder's home to the time when he began giving his statement to the police. During a lull in the questioning, defendant can be seen in the video recording touching his right cheek, directly below his eye.
At one point during defendant's statement, defendant was rubbing his forehead, and then-Detective Flaherty said "[h]eroin is a bad drug, huh man? Rough stuff, right?" Defendant's "four bag a day" heroin habit was also referenced by Lieutenant Irizarry.
Lieutenant Irizarry, the sole witness who testified at the suppression hearing, attested that defendant appeared to understand his Miranda rights. The lieutenant noted that he has "first-hand" experience of persons under the influence of alcohol, and that he also has a relative who is a recovering heroin addict. Lieutenant Irizarry did not believe that defendant was under the influence of heroin while giving his statement. As the lieutenant testified, "as far as his demeanor, at this time, he [defendant] didn't exhibit any signs that he was currently under the influence. Any signs that I'm specifically familiar with, between my work, my job, as well as my family member."
Lieutenant Irizarry acknowledged that defendant "appeared tired" but nevertheless seemed "alert" and that he "answered all [his] questions." The lieutenant also acknowledged that defendant appeared "disheveled," but he could not be sure if his physical appearance was because of heroin use or because of the incident at Ryder's home.
After viewing the video recording of the interrogation, the trial judge was persuaded that defendant was not in a coercive environment when he made his statement. Although the judge recognized that defendant appeared to be "tired," defendant did not appear to have lacked understanding of what was occurring. The judge concluded that defendant had been duly advised of his rights and that defendant understood his rights. As the judge elaborated:
And clearly there's no indication that he [defendant] does not understand, but rather indicates that he does. The question is . . . are the nature of the responses indicative of intoxication which would bereft him of his ability in some way to understand the warnings. The reality is that, as the Court recalls the video, he appeared to understandThe judge accordingly denied defendant's motion to suppress.
all warnings. He appeared tired. There was no question but that that video reflects somebody who is not speaking loudly, but rather speaking quietly, at times almost mumbling. But there's also no question but that every answer that was requested or every response that was given was in response to a question. There was no rambling, there was no unresponsive answers. Rather, the answers were dull or quietly given. He is very slow moving. That in and of itself gives rise to no inferences on the Court's part. Though, combined with the acknowledgment of defendant that he'd been high earlier, the Court can reasonably infer from that that he was coming down from his heroin [high.] [A]s a result he was, in fact, at a minimum tired and perhaps even somewhat anxious to get more heroin, as Counsel asked this Court to find.
But there's no indication on the record that any anxiety appeared to exist by defendant. If anything, he really kind of appeared ready to take a nap. There didn't appear to be any excitement or anxiety or need to get out of the room, answer questions so that he could obtain another hit, answer questions to curry favor.
Thus, while he was very slow moving, it was a white room. It was not oppressive. He rolled a cigarette. There were no handcuffs. The Miranda cards and warnings were given and signed off on. He looked at the Miranda warnings before he signed them. While I don't know how he signs his name, I can read James Dixon on it. He signed his name clearer than I sign mine when I'm stone cold sober.
The general questions that were asked were responded to quietly, but he was responsive without delay on his address. He knew the zip code, knew his mother's name, knew where he was coming from, knew how he
got down to the neighborhood, talked about walking through the neighborhood. Put on gloves, explained all that. I mean, it seems to me that everything he did proves in a very real sense to this Court that he understood exactly what was going on and was responsive to the questions and articulate[.]
. . . .
Based upon this Court's recollection of the D.V.D. and my reviewing the evidence before me, there is no question but that the Miranda warnings were given, understood and responded to.
[Emphasis added.]
On appeal, defendant fundamentally asserts that his statement to the police was coerced and involuntary. The legal framework for evaluating this contention is Miranda and its case law progeny.
In Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, the United States Supreme Court held that in order to safeguard Fifth Amendment rights against self-incrimination, a person may not be subjected to custodial interrogation by the police unless he is apprised of certain rights. Accord State v. Stas, 212 N.J. 37, 50-53 (2012). Specifically, police must inform such a person:
that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to theThe Court in Miranda also required that statements made to the police during a custodial interrogation be excluded at trial, unless it is shown that the defendant "knowingly, voluntarily and intelligently waived his rights" in responding to the officers' questions. Ibid.
presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
[Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]
In our state, a prosecutor bears the burden of proving such a voluntary waiver beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, our courts must look at the "totality of circumstances" involved. Ibid.; see also State v. Nyhammer, 197 N.J. 383, 402 (2009). Our courts consider such factors as defendant's age, education, and intelligence; the advice given about his constitutional rights; the length of the detention; whether the questioning was repeated or prolonged; and whether physical punishment or mental exhaustion was involved. Presha, supra, 163 N.J. at 313; Nyhammer, supra, 197 N.J. at 402; see also State v. Dispoto, 189 N.J. 108, 124-25 (2007) (noting that "fact-based assessments" are appropriate in considering the totality of circumstances and deciding whether a defendant voluntarily waived his rights).
The procedural safeguards of the Miranda doctrine attach when a criminal suspect is subjected to a custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977). "Any police interview of an individual suspected of a crime has coercive aspects to it." J.D.B. v. North Carolina, 564 U.S. ___________, _______________, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310, 321 (2011) (internal quotation and citation omitted).
Here, defendant essentially makes two sets of sub-arguments through his counsel's brief contesting the admissibility of his statements. First, he generically argues that the Miranda warning he received was facially insufficient to apprise defendant of his rights prior to giving a statement to the police, because the language itself would not effectively convey to a listener the import of the warning. Second, he argues that, under the particular circumstances in this case, the police officers did not obtain a knowing, voluntary, and intelligent waiver from defendant. We deal with each of these assertions separately.
1.
Defendant received the Metuchen Police Department's standard Miranda warning, which reads as follows:
You have the right to remain silent. Anything you say can be used against you in
a Court of Law. You have the right to talk to a lawyer and have a lawyer present with you while you're being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish one. And you can decide to exercise these rights at any time.
Defendant cites to several academic articles authored by Professor Richard Rogers and other scholars, each of which asserts in some way that standardized Miranda warnings are ineffective. For example, he relies upon two articles that contend that the word "right" is too advanced for the average prison inmate to understand. He notes that another articlereports that most pre-trial detainees were unable to explain what the word "right" means, even when presented in a legal context. He further points to another article, which states that many suspects do not realize that they will not be penalized for exercising their rights. Making reference to that same article, defendant likewise argues that "appointed counsel" is a term that most suspects do not understand, because they believe that they will have to pay for their appointed counsel.
See Richard Rogers et al., An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage, 31 Law & Hum. Behav. 177 (2007); Richard Rogers et al., The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 Law & Hum. Behav. 124 (2008) (cited for the proposition that to understand the word "right" in a legal context requires an eighty-grade reading level).
See Richard Rogers et al., In Plain English: Avoiding Recognized Problems with Miranda Miscomprehension, 17 Psychol. Pub. Pol'y & L. 264 (2011).
See Richard Rogers et al., "Everyone Knows Their Miranda Rights": Implicit Assumptions and Countervailing Evidence, 16 Psychol. Pub. Pol'y & L. 300, 303, 307 (2010).
In that same vein, defendant further argues that the standard Miranda warning does not sufficiently inform a detainee that he has the right to speak with an attorney before questioning, as opposed to having one only during questioning.Finally, defendant advocates that the warning that an arrestee can exercise his Miranda rights at any time is too sophisticated because arrestees typically do not understand that they can actually stop the interrogation at any time.
He cites Rogers et al., An Analysis of Miranda Warnings, supra, 31 Law & Hum. Behav. at 190, and Rogers et al., "Everyone Knows Their Miranda Rights", supra, 16 Psychol. Pub. Pol'y & L. at 303-04.
He cites Rogers et al., The Language of Miranda Warnings, supra, 32 Law & Hum. Behav. at 125, 130; Richard Rogers et al., The Comprehensibility and Content of Juvenile Miranda Warnings, 14 Psychol. Pub. Pol'y & L. 63, 81 (2008); Rogers et al., An Analysis of Miranda Warnings, supra, 31 Law & Hum. Behav. at 190; and Rogers et al., "Everyone Knows Their Miranda Rights," supra, 16 Psychol. Pub. Pol'y & L. at 304, 308, 311, 314-15.
Defendant proposes for our consideration a new standard Miranda warning, which he argues will be more effective in informing detainees of their rights:
You have the right to remain silent. This means that you do not have to say anything. And your silence cannot be used against you in court.
Anything you do say can be used against you in court.
You may get help from a lawyer now, before questioning. You may also have a lawyer help you during questioning.
If you cannot pay for a lawyer, you will get one for free.
You may stop this interview at any time.
We decline to adopt defendant's frontal attack on the present standard formulation of Miranda warnings, as they are customarily provided in this State. As an intermediate appellate court, we are bound by the holdings of the Supreme Court. See State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976). In addressing waiver of Miranda rights, the New Jersey Supreme Court's recent opinions have taken for granted that the language used in standard Miranda warnings, with minor variations, is valid. E.g., Nyhammer, supra, 197 N.J. at 390, 406-08 (finding a waiver valid when the warning was very similar to the one given here); State v. O'Neill, 193 N.J. 148, 167-70 (2007) (finding a Miranda violation because the warning, similar to the one here, was given after the defendant had made incriminating statements).
The Court has also made the similar but distinct point that the exact "words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient." State v. Melvin, 65 N.J. 1, 14 (1974) (quoting United States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968)). Implicit in this statement is that as long as officers give a warning which states the required information, the warning is sufficient even if it does not use the exact words used in Miranda. The warning given here hews very closely to that recommended in Miranda and cited in full above.
In fact, the practice of the Federal Bureau of Investigation at the time Miranda was decided was to warn each detainee, prior to questioning, "that he did not have to make a statement; that any statement that he made could be used against him in a court of law; [and] that he had the right to consult an attorney." Westover v. United States, 342 F.2d 684, 685 (9th Cir. 1965). The Court in Miranda stated that "[t]he practice of the FBI can readily be emulated by state and local enforcement agencies." Supra, 384 U.S. at 486, 86 S. Ct. at 1634, 16 L. Ed. 2d at 730.
Academic studies are not binding on this court. Precedent is, and that precedent clearly shows that the language of the standard Miranda warnings used in this case has not been regarded by our courts as constitutionally deficient. Hence, we reject defendant's contentions of deficiency, and reserve for the Supreme Court's consideration, either in an appeal or in the rule-making process, the institutional arguments that have been advanced in this appeal by defense counsel.
2.
Defendant further argues that his Miranda waiver was not valid because he was under the influence of heroin and because the police officers employed tactics which prevented defendant from fully appreciating the import of the warning. Neither claim warrants a reversal of the trial court's determination that the waiver was valid.
"A confession made by a person while under the influence of drugs is not per se involuntary." State v. Wade, 4 0 N.J. 27, 35 (1963). In State v. Warmbrun, 277 N.J. Super. 51, 56 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), the defendant, who had struck and killed a pedestrian with his car, was issued a Miranda warning and questioned while he "appeared intoxicated with slurred speech, red eyes, a flushed face and the odor of alcohol." The questioning was halted when defendant said that he wanted an attorney. Ibid. This court determined that, "although [the] defendant was very intoxicated," he effectively waived his Miranda rights by speaking to the police because
he was responsive in answering questions and could answer correctly questions such as his name, age, etc. The [trial] court found that this testimony was credible and that the evidence indicated a knowing and intelligent waiver given defendant's continued discussion of the matter. This finding is supported by substantial credible evidence in the record.
[Id. at 64.]
The present case is sufficiently similar to Warmbrun to warrant the same result. Although defendant here had used heroin on the day of his burglary and subsequent questioning, he clearly understood what he was being asked and what he was saying. He appropriately answered all questions, and his account of the events that day was both coherent and consistent with that of the responding officers. There is some indication that defendant may have been suffering from withdrawal at the time of questioning because he rubbed his forehead while a police officer commented that heroin is "rough stuff," but, as the trial judge observed, defendant did not appear anxious to leave the questioning.
The video recording shows the defendant relaxed and aware, but possibly tired. He speaks very quietly in the video, but that feature alone should not support a finding that his heroin use prevented him from making a knowing, voluntary, and intelligent waiver. In addition, our own perceptions of the videotape should not trump the deference we owe to the trial judge, who not only likewise viewed the tape but also considered the overall totality of circumstances, including the credibility of Lieutenant Irizarry's testimony at the suppression hearing. See State v. Elders, 192 N.J. 224, 245 (2007). We accept the trial judge's finding that defendant's heroin use did not prevent him from effectively waiving his Miranda rights.
Defendant also argues that his waiver was not knowing, voluntary, and intelligent because the police officers employed tactics that undermined his ability to understand the import of the warning. In particular, defendant claims that his statement should be suppressed because the warnings were embedded in small talk, the warnings were read quickly and without making eye contact, defendant "was prevented from reading the warnings," defendant was never asked if he wanted to talk, and defendant's waiver was treated as a foregone conclusion. These arguments are not persuasive.
Tellingly, defendant does not cite any precedent to show that the tactics he complains of constitute grounds to suppress his statement. He relies instead upon more academic studies, which assert that such tactics minimize suspects' appreciation of the warnings' significance.
Additionally, defendant claims that he was prevented from reading the Miranda warnings, but the record shows this is untrue. Defendant was handed a Miranda warning card, which he was asked to sign. He was never told not to read it. The video does not show defendant taking time to read the warning, but the fact remains that he was not prevented from doing so after hearing it read aloud to him.
The police here did embed the Miranda warning in what might be regarded as "small talk." The officers were discussing cigarettes and defendant's age before they issued the warning, and again discussed cigarettes before giving defendant the Miranda warning card so that he could sign it. The video also shows that Lieutenant Irizarry read the warning aloud — perhaps somewhat quickly — but each word is clearly understandable, and defendant was given a card with the warning written on it.
These factors must also be placed in the context of defendant's considerable criminal history, his assertion that he understood the rights that were read to him, and his signing the Miranda warning card. See Fare v. Michael C, 442 U.S. 707, 726-27, 99 S. Ct. 2560, 2572-73, 61 L. Ed. 2d 197, 213 (1979) (considering a juvenile defendant's "considerable experience with the police," intelligence, and the fact that no lengthy questioning or trickery was used during questioning in finding that the defendant's waiver was knowing, voluntary, and intelligent). Undoubtedly, defendant had heard the same sort of warning a number of times before. To allay any concern that defendant misapprehended the gravity of his conversation with the officers, they specifically informed him that he was under arrest and that charges were being brought against him.
Defendant further claims that the police treated a waiver of his Miranda rights as a "foregone conclusion." While this may be true because the police officers wanted to encourage defendant to give a statement, it may also be because defendant had already told them that he intended to give a statement. There is nothing discernible in the record which suggests that one conclusion or another is the correct one, and so this particular claim is unavailing.
Consistent with the factors listed in Presha, supra, we affirm the trial court's holding that the waiver was knowing, voluntary, and intelligent. 163 N.J. at 313. Defendant was, at the time of questioning, fifty-one years old. Although his education is not reflected in the record, defendant's criminal history suggests that he has sufficient experience with criminal matters to understand Miranda warnings. Based on defendant's conversation with police, he appears to be of at least normal intelligence. The questioning lasted roughly an hour and a half, and there is no indication on record of physical punishment or mental exhaustion to coerce a confession. At most, defendant was, as the trial judge found, "tired." However, his described level of fatigue was not so severe to prevent him from understanding what was going on and cogently participating in the interview.
Given the "totality of the circumstances," we affirm the trial court's finding that defendant's waiver of his Miranda rights was knowing, voluntary, and intelligent. His statement was therefore properly admitted at trial.
3.
In his pro se brief, defendant asserts that he did not voluntarily waive his Miranda rights because police officers physically assaulted him before he gave his recorded statement. This argument was not raised at the trial level, and no evidence was presented at the time which would support that assertion. As an attachment to his brief, defendant has submitted to this court a photograph of himself which purportedly shows a facial injury given to him by the police officers who allegedly beat him.
Although the video recording of defendant's statement shows defendant at times touching his face, the record on direct appeal is plainly insufficient to support defendant's new assertion that the police used physical force to compel him to give a statement. No testimony was offered by defendant or police at or before trial as to whether defendant was physically assaulted by police officers. Moreover, the video recording of defendant's statement offers no indication that defendant had been intimidated by police officers. In fact, the conversation appears relaxed, and defendant was allowed to roll a cigarette and smoke while giving his statement.
Defendant also argues in his pro se brief that he did not receive effective assistance of counsel because his trial attorney failed to raise the alleged physical intimidation as grounds for suppressing his statement to police.
We decline to address these pro se issues on direct appeal. Instead, we reserve such claims for a future potential application for post-conviction relief ("PCR"), where the record may be expanded with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 459-60 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
B.
The second point on appeal is readily addressed. The trial judge sentenced defendant for criminal restraint, even though defendant was found guilty of false imprisonment. Defendant argues that this was improper, and the State has conceded the point.
Criminal restraint is a third-degree crime, N.J.S.A. 2C:13-2, whereas false imprisonment is a disorderly persons offense, N.J.S.A. 2C:13-3. The sentence imposed for criminal restraint was five years, to run concurrently with the five-year sentence for aggravated assault. However, the maximum term of imprisonment for a disorderly persons offense is six months. N.J.S.A. 2C:43-8. Consequently, there is a need to remand this matter for resentencing on that count of the indictment.
C.
We turn to the issues of merger. As a general proposition, "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense." N.J.S.A. 2C:1-8a. However, merger is required under N.J.S.A. 2C:1-8a(1) when one offense is a lesser-included offense of another.
In addition to these basic statutory guidelines, our courts determine whether two charges should merge by looking to:
the time and place of each purported violation[,] whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count[,] whether one act was an integral part of a larger scheme or episode[,] the intent of the accused[,] and the consequences of the criminal standards transgressed.These factors are "attended by considerations of 'fairness and fulfillment of reasonable expectations in light of the constitutional and common law goals.'" Ibid. (quoting State v. Currie, 41 N.J. 531, 539 (1964)).
[State v. Davis, 68 N.J. 69, 81 (1975).]
The question presented here is whether defendant's respective convictions for aggravated assault and false imprisonment should each merge into the robbery conviction. Under N.J.S.A. 2C:15-1a, robbery is defined as follows:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:Robbery is a crime of the second-degree, but if the assailant purposely inflicts serious bodily injury, it is a crime of the first-degree. N.J.S.A. 2C:15-1b.
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second-degree.
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
There are a number of different forms of "aggravated assault," but the type of aggravated assault relevant here is when a person purposely, knowingly, or recklessly causes "serious bodily injury" to another. N.J.S.A. 2C:12-1b(1). This type of aggravated assault is a second-degree crime. N.J.S.A. 2C:12-1b. If the victim only suffers "significant bodily injury" the aggravated assault is a third-degree crime. Ibid.
Despite the common overlap between assault and robbery, the New Jersey Supreme Court has eschewed the "shorthand understanding that robbery equals theft plus assault[.]" State v. Sewell, 127 N.J. 133, 147 (1992). Hence, the formulaic merger rule expressed in N.J.S.A. 2C:1-8d is not applicable here because assault is not a lesser-included offense to robbery, and so the criteria in Davis, supra, are instead applicable.
The Davis factors were applied in State v. Mirault, 92 N.J. 492 (1983), a case involving a similar merger contention that defendant raises here. In that case, the defendant had burglarized a person's home, and was confronted by a police officer while in the home. Id. at 494. The officer drew his gun, and the defendant "leaped at [the officer] and grabbed his revolver as the two fell to the ground." Ibid. During a struggle, the officer discharged all of the gun's bullets to prevent the defendant from using the gun. Ibid. When other officers arrived, they ended the struggle by subduing the defendant. Ibid. The defendant was indicted for burglary, robbery, attempted murder of the officer, and aggravated assault on the officer. Ibid. The jury convicted the defendant of all of the charges except the attempted murder, which had been dismissed by the judge. Ibid. The defendant received separate sentences for the robbery and aggravated assault. Id. at 495.
The aggravated assault conviction was not based on the fact that the assault was on a police officer, but because of the seriousness of the injuries sustained by the officer. Mirault, 92 N.J. at 505; cf. N.J.S.A. 2C:12-1b(5).
The Court determined in Mirault that the robbery and aggravated assault charges should have merged because the "proofs to sustain [the charges] were identical." Id. at 503. The "same physical acts necessarily gave rise to the distinct grade of both offenses," and so under the so-called "same transaction" test, merger was appropriate. Id. at 503-04. The Court also found that the legislative purpose behind first-degree robbery justified merger. Id. at 504-05. Although the Court noted that "the Legislature may fractionalize a single criminal episode into separate offenses," it observed that the "predominant legislative purpose" of making robbery a crime is to punish violent theft. Id. at 504. The Court concluded that the legislative scheme did not contemplate separate convictions between first-degree robbery and aggravated assault under the circumstances of that case. Id. at 504. For these reasons, the Court merged the robbery and aggravated assault convictions. Id. at 506; see also State v. Battle, 209 N.J. Super. 255, 259-60 (App. Div.) (finding merger appropriate in a purse-snatching case because the simple assault on the victim was "a constituent element of the second-degree robbery"), certif. denied, 105 N.J. 560, 560-61 (1986).
The Court noted that if the aggravated assault conviction had been based on the fact that the defendant assaulted a police officer, the "merger considerations would be different[.]" Id. at 505.
Mirault supports defendant's contention that merger is likewise appropriate here. In both cases, an intruder was found within a home in the course of a burglary, and the intruder engaged in a physical altercation with the person who found him. Also in both cases, the "same physical acts necessarily gave rise to the distinct grade of both offenses." Mirault, supra, 92 N.J. at 504. Likewise, the legislative purpose of punishing "violent theft" applies. Id. at 504. There is no relevant distinction between this case and Mirault which would justify a different result. In fact, the assault in Mirault was more attenuated from the robbery than it is here, because the assault there was not even upon the person from whom the defendant was stealing.
The State argues that the robbery and assault charges should not merge because defendant took Ryder's wallet immediately after punching him. We disagree. We do not conceive of the merger doctrine so narrowly that an aggravated assault would only merge into robbery if both offenses are completed at the exact same moment. Indeed, that was not the case in Mirault.
We do agree with the State, however, that defendant's false imprisonment conviction should not merge with the robbery conviction. A conviction for false imprisonment requires proof that the defendant "knowingly restrain[ed] another unlawfully so as to interfere substantially with his liberty." N.J.S.A. 2C:13-3 (emphasis added). It is true that, to some degree, defendant used force to effect a false imprisonment here. However, when the judge explained why the robbery was a second-degree offense as opposed to a first-degree crime, he referred back to the difference between a "serious" and "significant" bodily injury arising from the single punch to the face. Hence, it does not appear that the judge premised the false imprisonment conviction on the same facts as the robbery conviction.
Even if some of the same facts help support defendant's separate convictions for robbery and false imprisonment, the Davis factors do not justify their merger. These two crimes did take place at the same time and in the same location within the house. However, the robbery conviction also requires proof that defendant stole something, and the false imprisonment conviction requires proof of interference with the victim's liberty. The false imprisonment conviction therefore is not subsumed by the robbery conviction. Moreover, the criminal purpose in committing the false imprisonment, as stated by defendant in his police interview, was to prevent Ryder from struggling. The purpose of the robbery, by comparison, was to steal from Ryder. These considerations show that the false imprisonment conviction does not have to merge into the robbery conviction.
D.
We next consider defendant's challenge to his consecutive sentences. In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), our Supreme Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The Court noted that it is "senseless" to give a criminal free crimes. Id. at 639. Instead, a sentencing court should consider the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) 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; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Id. at 644.
These five factors are to be applied qualitatively, rather than quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). A consecutive sentence can be imposed even if a majority of the Yarbough factors support concurrent sentences. Id. at 427-28. The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 471, 485 (1993); State v. Miller, 108 N.J. 112, 121 (1987).
Here, the five-year consecutive sentence imposed for the aggravated assault is invalid because, as we have already held in Point II(C), supra, the assault conviction must merge into the robbery offense. That leaves us to consider the other consecutive sentence for what the judge erroneously treated at sentencing as a "criminal restraint" offense but what, in actuality, was false imprisonment.
We recognize that the five-year custodial term on this count must be reduced on remand to fall within the six-month maximum for the disorderly persons offense of false imprisonment.
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Under the Yarbough standards, the false imprisonment conviction is sufficiently distinct from the burglary and robbery convictions. Defendant stated that his purpose in tying up Ryder was to prevent a struggle. The sentence for false imprisonment may lawfully run consecutively to the sentences imposed for robbery and burglary because the subsequent act of binding Ryder's wrists had a separate predominant purpose than the robbery and burglary. On resentencing, the trial judge shall retain the discretion to impose such a consecutive sentence.
E.
Defendant's remaining arguments, including his claim that the court wrongfully neglected to consider his age as a mitigating sentencing factor, and his claim that the court misapplied the respective sentencing factors, lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(2); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to accord great deference to sentencing judges' assessments of the aggravating and mitigating factors).
The convictions are affirmed, as modified with respect to the false imprisonment offense. The matter is remanded for resentencing consistent with the terms of this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION