Opinion
DOCKET NO. A-1111-10T1
05-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL GRAHAM, a/k/a DRAG, Defendant-Appellant.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-1099.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
The grand jurors for Hudson County charged defendant Michael Graham and co-defendants — Tyjuan Wilson and Rashawn Benekin — with crimes that resulted in the death of Christopher Rodas. Defendant and Wilson were tried together, and Benekin, who had pled guilty to conspiracy to commit armed robbery, testified for the State. A redacted recording of a statement defendant gave the police days after the shooting, Benekin's testimony and the testimony of Samir Cowart, who was present when the co-defendants pushed their way into the hallway leading to Rodas' apartment, was the only evidence linking defendant to the crimes.
There was a third co-defendant, Aquilla Roach. The record does not reflect the disposition of the charges against him.
In return for his guilty plea and truthful testimony, the State offered to recommend a ten-year sentence, which the judge could reduce to a five-year term based on Benekin's cooperation.
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The jury acquitted Wilson of all charges and acquitted defendant of murder, two counts of felony murder and armed robbery. But the jury found defendant guilty of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; conspiracy to commit burglary while armed, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2; burglary while armed, N.J.S.A. 2C:18-2; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The judge merged defendant's convictions for conspiracy to commit burglary and possession of a weapon for an unlawful purpose with his conviction for second-degree burglary, and, on the remaining counts, he sentenced defendant to concurrent terms for an aggregate of ten years subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
On January 6, 2008, Rodas was shot and killed in his apartment above a store on Old Bergen Road in Jersey City. Access to the apartment is through an outside door at street level that opens onto a hallway with a staircase leading to the apartment. That day, Benekin spent the afternoon and evening in Rodas' apartment with him, his roommates and their guests. They were playing video games, bagging marijuana and putting cocaine in vials. Benekin expected to receive a portion of the drugs to sell, and he and Rodas argued about the size of his share.
While Benekin was with Rodas, he received a call from Wilson and left to meet him around the corner. There, Benekin shared his plan to rob Rodas with Wilson. Because Benekin's plan required a gun and neither of them had one, they contacted defendant.
Benekin told defendant about their plan and offered defendant a share of the proceeds if he brought them a gun. As defendant later told the police, he had found a gun he saw someone — he did not know who — discard a few days earlier and brought it with him when he met Benekin and Wilson. He knew they intended to settle a dispute with Rodas about drugs or money. According to Benekin, defendant arrived with a .357 Magnum, and the three men went to the door leading to Rodas' apartment together. When Benekin rang the bell, Wilson and defendant were behind him.
Cowart came downstairs to answer the door and as he opened it, Benekin and Wilson barged in and defendant followed and closed the door behind them. A struggle ensued in the downstairs hallway. Defendant later told the police that someone — he did not know who — took the gun out of his pocket during that struggle. He said he never went up the stairs to the apartment, left when his gun was taken and heard gunfire when he was outside. According to Benekin and Cowart, defendant gave Wilson the gun and Wilson pulled up a mask while going upstairs with the gun. Cowart saw defendant enter the apartment, but Benekin only saw him on the stairs.
Both Benekin and Cowart testified that they were still struggling in the hallway downstairs when they heard gunfire upstairs. At that point, Benekin saw defendant on the stairs and Wilson throw defendant two guns as he came from the apartment and down the stairs. One of the guns was defendant's and the other was one taken from the apartment. By Benekin's account, he, Wilson and defendant left the building together, stashed the guns on Linden Avenue and walked home.
Cowart went upstairs after hearing the shots, and he found Rodas lying on the floor in one of the bedrooms. He called for medical assistance, but Rodas had been shot in the face and died as a consequence.
Police found a spent bullet at the crime scene, and on January 8 they found a .357 Magnum and .38 caliber gun hidden outside a home on Linden Avenue. A firearm expert later determined that the bullet found was discharged from the .357 Magnum found on Linden Avenue.
Detectives interviewed Benekin on January 9. They interviewed defendant on January 11, which is when he gave his recorded statement. Cowart gave several statements to the police, but he never implicated defendant until trial.
Defendant raises three issues on appeal:
I. SINCE THE POLICE FAILED TO CLARIFY DEFENDANT'S INITIAL CONCERNS ABOUT TALKING TO THE POLICE AND HIS RIGHT TO AN ATTORNEY AND INSTEAD CAJOLED HIM INTO GIVING A STATEMENT, DEFENDANT'S WAIVER OF RIGHTS WAS NOT KNOWING AND VOLUNTARY AND THE TRIAL COURT'S DECISION DENYING THE SUPPRESSION OF DEFENDANT'S STATEMENT SHOULD BE REVERSED.
II. THE ADMISSION OF PORTIONS OF DEFENDANT'S STATEMENT AND POLICE TESTIMONY THAT DEFENDANT WAS LYING IN
CONTRAST TO OTHER SOURCES, MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.
III. DEFENDANT'S MAXIMUM AGGREGATE 10-YEAR SENTENCE FOR SECOND DEGREE CONSPIRACY AND BURGLARY WAS EXCESSIVE.
I
In reviewing the denial of a motion to suppress, this court accepts the judge's factual findings if they are adequately supported by credible evidence. State v. Minitee, 210 N.J. 307, 317 (2012). The judge's determination is disturbed only when the findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Applying that standard, there is no basis for intervention in this case. Defendant was nineteen years old when he was interviewed on the morning of January 11, 2008. He had no prior convictions and one adjudication of delinquency. Detective Kilroy was with Detective Crowe during most of the interview, and Sergeant Kolich came in and out of the room. The entire interview lasted for about an hour and a half. Defendant was not handcuffed, and he was allowed to select his seat at the table. Before the interview commenced, Detective Crowe asked defendant if he wanted something to drink and brought him what he wanted — water. Defendant was not told that the interview was being recorded.
On returning with the water, Detective Crowe reminded defendant that he and Detective Kilroy were from Homicide and that he was "not under arrest at this time." Detective Crowe asked defendant if he understood he was not under arrest, and defendant nodded to indicate he did. After defendant confirmed his date of birth, social security number and mother's name, Detectives Crowe and Kilroy advised him of his rights and defendant signed a form acknowledging that he read and understood his rights and was willing to make a statement and answer questions, did not want a lawyer at that time, understood and knew what he was doing and had not been subjected to threats, pressure or coercion of any kind.
The judge found that the defendant was advised as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that the explanation was detailed and that defendant understood and knowingly, intelligently and voluntarily waived his rights. The record not only supports those determinations, it compels them.
Because defendant's arguments rely on excerpts from the colloquy between him and the officers about his rights without context, we provide the entire colloquy.
Detective Crowe: Okay. All right. What I got to do is I got to read you your rights. Just like on TV. No big deal. Okay? You ever had them read to you before?The sergeant left the room, and the detectives began the questioning.
Mr. Graham: (Shaking head.)
Detective Crowe: No? All right. All right. Before we ask you any questions, you must understand your rights. You have the right to remain silent. You understand that.
Mr. Graham: (Nodding head.)
Detective Crowe: Okay. Just put a "Y" next to it for yes. It's right here. The first one. You keep the pen for a minute there.
The next one says anything you say can be used against you in court. You understand that? Yes?
Mr. Graham: Yes.
Detective Crowe: Okay. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. Do you understand that?
Mr. Graham: Yes.
Detective Crowe: If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. Do you understand that?
Mr. Graham: Yes.
Detective Crowe: The last one here is, if you decide to answer questions now without a lawyer present, he will still have the right to stop answering at any time. You also have the right to stop answering any time until you talk to a lawyer. Do you understand that?
Mr. Graham: Yeah.
Detective Crowe: Okay. Since you understand all these rights, this is the waiver of rights. Here it says, "I have read this statement of my rights" — you can read, right?
Mr. Graham: Hm-hm.
Detective Crowe: Actually, why don't you read this out loud right here.
Mr. Graham: I have read statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do — I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or —
Detective Crowe: That's coercion.
Mr. Graham: — coercion of any kind has been used against me.
Detective Crowe: You understand what coercion means?
Mr. Graham: No.
Detective Graham: It's like no one is basically pushing you into doing it, into talking to us now. You know what I'm saying? You understand all that?
Mr. Graham: Yeah.
Detective Crowe: You're willing to talk to us?
Mr. Graham: All right. So, I only have a question. That mean, like, I'm about to go to jail?
Detective Crowe: No. I'm reading — no. I'm reading you your rights.
Mr. Graham: No. I'm saying, like, because it's saying with or without a lawyer. So, like, if I don't want to talk about anything that mean I got to go to jail?
Detective Crowe: No. No. You're not under arrest. I told you that.
Mr. Graham: That's what I'm asking. So, if I don't want to talk —
Detective Crowe: No. I have to read you your rights, though.
Mr. Graham: If ain't want to talk — if ain't want to talk — I'm saying I'm a talk —
Detective Crowe: Okay.
Mr. Graham: — because I want to know what y'all — I'm just asking, like, because it's saying without a lawyer —
Detective Crowe: No, no, no. Like I said —
Mr. Graham: It's saying if you don't have — it's saying — you know what I mean?
Detective Crowe: Okay.
Mr. Graham: If you don't have a lawyer, you don't have to talk until your lawyer get there or if you want a public defender, I guess what that called, you don't have to talk until they get there, but I'm saying if I don't want to talk —
Detective Crowe: Right. But you're not charged with anything and you're not under arrest.
Mr. Graham: That's what I'm saying.
Detective Crowe: But I have to read you your rights, though.
Mr. Graham: If I didn't want to talk, I — would I be able to go home and then y'all came and got me again or something?
Detective Crowe: Yeah. At this time, you're not being charged with anything.
Mr. Graham: Oh. Okay. All right.
Detective Crowe: That's what I'm saying. You're not being charged. You're not under arrest.
Mr. Graham: Oh. All right.
Detective Kilroy: But we read you your rights, Mike, because —
Detective Crowe: I have to read you your rights.
Detective Kilroy: — in case you make an incriminating statement — you know what I'm saying — if you incriminate yourself in a crime, you were already Mirandized and you know that you — that you freely talked to us. You know what I'm saying? That's why we have to Mirandize you, read you your rights.
Mr. Graham: Yeah.
Detective Kilroy: In case you incriminate yourself or something.
Mr. Graham: Oh. Because I'm, like, I don't know —
Detective Crowe: You sign. Him and I are the witnesses.
Detective Kilroy: Yeah. So we read you your rights. That's all this is.
Detective Crowe: If you understand your rights, you're willing to talk to us, you just sign and then we can start talking to each other.
Mr. Graham: That's crazy. But I don't even know what I'm doing. You just came up. Got up today and the cops are knocking on my door. I don't even know. I'm probably gonna go to jail.
Detective Crowe: Why do you say that?
Mr. Graham: I don't — I don't — 'cause not — I know I ain't done anything. I just told my mother I'll probably go to jail 'cause, like, it's —
[(Sergeant Kolich enters) He asks the detectives if defendant is doing alright; Detective Crowe says, "we're good."]
Mr. Graham: Just on the strength that it's a murder case, like, people they might not want you to go anywhere. They might hold you until they find out stuff.
Detective Crow: Okay.
Mr. Graham: So, like, — I'm, like, there's a chance.
Sergeant Kolich: Michael, my guys explained to you you're not under arrest, right?
Mr. Graham: Yeah.
Sergeant Kolich: Okay.
Mr. Graham: They explained.
Sergeant Kolich: And they just want to talk to you. And this is something we have to do before we talk to people. It's just a formality. Okay?
Mr. Graham: Yeah.
Sergeant Kolich: Listen to me.
Mr. Graham: Hm-hm.
Sergeant Kolich: My guys, since Sunday night, have talked to a lot of people. Okay? A lot of people. And as you know, we've arrested three people.
Mr. Graham: I heard — I only know they arrested two people.
Sergeant Kolich: Okay. Well, we have arrested three. I'm being honest with you. I'm telling you straight up-front.
Mr. Graham: I'm listening.
Sergeant Kolich: So, the reason I'm telling you that is some of the questions my guys are going to ask you, they already know the answers to.
Mr. Graham: Yeah.
Sergeant Kolich: Okay?
Mr. Graham: Yeah.
Sergeant Kolich: We want to see if you're telling the truth.
Mr. Graham: All right.
Sergeant Kolich: Okay? Fair enough?
Mr. Graham: That's fair.
Sergeant Kolich: And listen to me. Somebody died.
Mr. Graham: I know. I know that kid died.
Sergeant Kolich: You understand that? So, we want the truth. Anybody lies to us, is going to have a problem with us. Fair enough?
Mr. Graham: Yeah.
Sergeant Kolich: Because we don't play around here. This is a homicide. This isn't like a burglary. Okay? This isn't like someone stealing somebody's wallet.
Mr. Graham: I know. I know.
. . . .
Sergeant Kolich: Okay. As long as you understand that. And I'm — I'm not doing that to scare you because I don't want to scare you. I just want you to know where we're coming from.
During the course of the interview, the detectives and Sergeant Kolich advised defendant that others had implicated him, and they urged him to tell the truth to avoid taking the blame for what others had done. At first, defendant denied any involvement and said he was not present, but as the interview progressed he disclosed his role — bringing a gun he had found to his friends and leaving when it was taken from him.
After defendant made those disclosures and the detectives left to get him more water, Sergeant Kolich returned with them and advised defendant that he knew what he had said and told him he was being charged. He said, "Right now we're charging you with the felony murder because you brought the gun to the scene, and we know you brought the gun to scene." The sergeant also said, "three guys are saying that you're the one to [sic] coordinated this robbery" — that you were the "ringleader."
After urging defendant to use his head and tell the truth and noting that he could be in prison until he was fifty, Sergeant Kolich was blunt:
I'm going out. These guys are going to talk to you. If they come out and tell me you're jerking me around, you're done. You understand that? You're done. Right now — I'm telling you right now, you're under arrest and you're going to be charged with felony murder. Okay? I'm telling you that right now.
The sergeant left saying, "Talk to my detectives. Tell them the truth." And before departing, he advised defendant that his life depended on it and that he had to decide whether he was going home or having a bologna sandwich in jail that night. Defendant corrected the sergeant, observing "I already know I'm going to jail either way." Sergeant Kolich agreed that defendant was correct and clarified that the question now was how long he was going to be in jail. He told defendant that the police had three stories that matched and that defendant's story did not match.
Additional questions posed by the detectives yielded no more information about who took the gun from defendant or where defendant got it. Detective Crowe then told defendant he had to take a taped statement of what defendant had told them, and Detective Kilroy left the room. Defendant said, "Yeah. I guess," and Detective Crowe said, "You already said it. You might as well put it on tape so the judge can hear it."
Defendant then said, "I thought I could wait until I got a lawyer or something like that." Detective Crowe asked defendant what he was talking about and reminded him that he had been read his rights.
At that point, defendant said, "Y'all about to take me away anyway, right?" Detective Crowe said, "You're getting arrested. Yeah. Like my sergeant said, so." Defendant said, "All right. So, y'all can just take me. The only thing I ask is could I talk to my mom." Detective Crowe said, "I'll let you talk to your mom. I got to take this tape from you." Detective Crowe asked defendant to give him a few minutes, and left.
Sergeant Kolich, apparently unaware of defendant's statement about an attorney, came back and asked him who took the gun from him. The sergeant reminded defendant he was "being charged with felony murder" and said he was giving defendant another opportunity to get two bonus points by telling him where he got the gun and who took it from him. As the sergeant posed additional questions without any success beyond defendant saying he thought Cowart might have taken the gun because he was too aggressive and had too much control, Detective Crowe returned and interrupted his sergeant. They left the room together. At the suppression hearing, Detective Crowe testified that he had not told Sergeant Kolich what defendant had said about an attorney before the conversation they had on leaving the room.
When Sergeant Kolich came back, he asked defendant what he meant when he had said "what about his lawyer" and told defendant he was not sure what he meant by that. Defendant said:
No. I was just saying 'cause, like, I don't really — I don't really feel like being asked questions or nothing. I just know I'm going to jail today. So, I just — the only thing I want to do is just quick talk to my mother. That's it and you can take me.
Sergeant Kolich continued to inquire about whether defendant wanted a lawyer. He laid out defendant's options and said he would do whatever defendant wanted to do. At that point, the sergeant asked: "Do you want us to stop questioning you now and get a lawyer or do you want to give us a statement about what you told us on audiotape?" Defendant said, "I don't really want to talk on tape."
The judge found that at that point, defendant invoked his right to remain silent. Accordingly, he directed the suppression of the remainder of the interview and its redaction from the recording and transcript.
With the exception of statements defendant made after invoking his right to remain silent, the judge found that the State proved, beyond a reasonable doubt, that defendant was properly advised of his Miranda rights, knowingly, intelligently and voluntarily waived those rights and gave his statement knowingly and voluntarily. He found that defendant was nineteen years of age, given and understood detailed Miranda warnings and that the interview, which lasted for about an hour and a half, was not long and did not involve any use of impermissible physical or psychological pressure.
At the suppression hearing, defense counsel argued that the officers had prepared the complaint and arrest warrant form before they interviewed him and misled defendant by telling him he was not under arrest. Defense counsel based that argument on: the absence of any evidence indicating the hour at which the complaint and arrest warrant were prepared and signed; the absence of any information obtained in the statement of probable cause; and the fact that Detective Crowe, who testified for the State at the suppression hearing, did not know when the complaint and warrant were prepared or signed.
The judge adjourned the hearing so the State could call Sergeant Kolich as a witness. During his testimony, the sergeant said that he directed the preparation of the complaint after the interview ended and reviewed it before it was presented to a judge. The trial judge credited that testimony and found it wholly consistent with what the officers told defendant about his status during the interview.
Defendant presents three arguments for reversal of the judge's ruling on his motion to suppress. He argues: A) that the detectives misled him by not disclosing that a complaint for his arrest had been prepared prior to questioning him; B) that they failed to inquire about what he now contends was an equivocal invocation of his right to counsel at the outset of the interview; and C) that they mislead him by minimizing the significance of the Miranda warnings and improperly cajoling him to talk to them. We address these arguments in turn.
A
Without question, officers must inform a suspect who is being questioned when "a criminal complaint or arrest warrant has been filed or issued," because that "information [is] indispensable to a knowing and intelligent waiver of rights." State v. A.G.D., 178 N.J. 56, 68 (2003). Because status as a suspect is qualitatively different than a formal charge, however, non-disclosure of suspect status is treated as one of the many circumstances relevant to the validity of a waiver. State v. Nyhammer, 197 N.J. 383, 405-07, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).
Defendant's first objection to the denial of his motion to suppress — his claim that the officers failed to advise him of his true status — does not require extended discussion. As noted above, the judge credited the officers' testimony and believed Sergeant Kolich's testimony that he decided to charge defendant after the interview. We are not in a position to question the judge's credibility findings, and his conclusion that the officers' testimony is wholly consistent with what transpired during the interview is more than amply supported by the record. It is apparent that the officers were cautious about advising defendant of his true status and that they advised defendant, with unmistakable clarity, when his disclosures led them to conclude that he should be charged.
The record provides no support for a claim that defendant was unaware of the fact that he was a suspect. Before defendant provided any information about the crime, Sergeant Kolich told him that they had arrested three other people and already knew the answers to some of the questions they were going to ask defendant. From the outset, defendant thought he would be going to jail, and he told the officers that he had told his mother that he would be jailed.
B
We turn to consider defendant's claim that he made a statement amounting to an ambiguous invocation of his right to counsel at the outset of the interview. "When a suspect makes a statement that could be interpreted as a request for an attorney, the questioning must cease until an attorney has been made available or the accused 'initiates further communication, exchanges, or conversation with the police.'" State v. Messino, 378 N.J. Super. 559, 577 (App. Div.) (quoting State v. Chew, 150 N.J. 30, 61 (1997)), certif. denied, 185 N.J. 297 (2005). Faced with "an ambiguous request for counsel," an officer must ask questions to clarify whether defendant is invoking the right. State v. Alston, 204 N.J. 614, 624 (2011). Moreover, courts must interpret "[a]n 'equivocal request for an attorney . . . in a light most favorable to the defendant.'" Messino, supra, 378 N.J. Super. at 578 (quoting Chew, supra, 150 N.J. at 63).
As defendant put it with his first question about the Miranda warnings, his only question was whether he was going to jail. Detective Crowe answered no and explained that he was simply reading defendant his rights. Defendant explained what he meant: "No. I'm saying, like because it's saying with or without a lawyer. So, like, if I don't want to talk about anything that mean I got to go to jail?" He then stated his understanding of the right to representation: "If you don't have a lawyer, you don't have to talk until your lawyer get there or if you want a public defender, I guess what that called, you don't have to talk until they get there, but I'm saying if I don't want to talk —." Answering defendant's question, Detective Crowe said, "Right. But you're not charged with anything and you're not under arrest."
Defendant responded by asking for further clarification about jail, not his right to representation: "If I didn't want to talk, would I be able to go home and then y'all came and got me again or something?" Detective Crowe said, "Yeah. At this time, you're not being charged with anything." (Emphasis added). Satisfied with that response, defendant said, "Oh. Okay. All right."
Considered in context, defendant's statements indicate that he understood his right to have an attorney and remain silent and was not invoking either right. His question was whether he could leave without saying a thing, even if he did not have an attorney. The half statements defendant made during this series of questions and answers about his rights, indicate he wanted to talk because he wanted to learn what information the detectives already had. He said, "I'm saying I'm a talk — . . . because I want to know what y'all —."
At the suppression hearing, defendant did not argue that his question about an attorney was an invocation of his right to counsel. Consequently, the judge did not address it. The record, however, permits us to conclude that defendant's question was about going to jail, not an invocation or even an ambiguous or equivocal invocation of the right to counsel. Thus, the argument has insufficient merit to warrant any further discussion because it lacks support in the record. R. 2:11-3(e)(2). The fact that defendant asked about having an attorney at the conclusion of the interview does not change our view. When Sergeant Kolich asked what defendant meant by his statement, defendant again explained that a lawyer was not what he wanted. He said, "No. I was just saying 'cause, like, I don't really — I don't really feel like being asked questions or nothing. I just know I'm going to jail today. So, I just — the only thing I want to do is just quick talk to my mother. That's it and you can take me." "I don't really want to talk on tape."
C
Defendant also argues that the judge erred in determining that he knowingly, voluntarily and intelligently waived his rights and gave his statement voluntarily. He points to the fact that the officers minimized the significance of the Miranda warnings as they delivered them and that he told the officers he did not "know what he was doing" when asked to sign the Miranda waiver.
There is no question that Detective Crowe said the Miranda warnings were "[n]o big deal" and that Sergeant Kolich said they were "just a formality." Viewed in context, however, those remarks were not misleading. Immediately, after telling defendant that the warnings were no big deal, Detective Crowe explained that "[b]efore we ask you any questions, you must understand your rights." Moreover, Detective Kilroy followed up by explaining the consequences of saying anything incriminating and that they were reading him his rights so that they would know he had spoken to them freely if he incriminated himself. Finally, Sergeant Kolich, who said the warnings were a formality, followed that statement by making defendant's situation perfectly clear. He told defendant this was a homicide case, that they had spoken to others who had been arrested and that his officers already had information and were not playing around because someone had died. He did not pressure defendant to speak or suggest that what defendant would say was unimportant. In fact, he told defendant he would be in trouble if he lied.
The totality of the interview — questions and responses — indicates that defendant was not misled and fully understood the significance of his speaking to the police and that he had the right to end the interview and go home, at least until such time as the police had more evidence against him. When he said he did not know what he was doing, defendant also said he was probably going to jail and that he had told his mother that he would probably be going to jail "just on the strength that it's a murder case," even though he had not done anything. His statements do not suggest that he did not know whether he wanted to or thought he had to talk to the police. Nor do they suggest that his will was overborne by trickery, deceit of minimization of the importance of this interview or his right to refrain from incriminating himself. As noted above, it was clear that defendant wanted to know what evidence the officers had and make statements minimizing his role in Rodas' death. Given that the jurors acquitted him of murder, felony murder and first-degree robbery, his effort was apparently successful.
Summarizing, there is nothing in the interview, or the circumstances surrounding it, that casts doubt on the judge's well-supported conclusion that the detectives thoroughly explained and defendant knowingly, intelligently and voluntarily waived his rights to remain silent and have an attorney present. The totality of the circumstances also support the judge's determination that defendant made the statement voluntarily and not because the officers misled him or used improper methods to overcome or impair his capacity to waive his right to remain silent. State v. Knight, 183 N.J. 449, 462-63 (2005); State v. Galloway, 133 N.J. 631, 654 (1993); State v. Cabrera, 387 N.J. Super. 81, 99-100 (App. Div. 2006).
II
Defendant argues that the judge erred in admitting portions of defendant's interview in which the officers indicated that they believed defendant was lying based on information that they had received from others. The judge determined that a limiting instruction would cure the hearsay objection.
Pursuant to Rule 3:17(a), the officers were required to record defendant's custodial interrogation. See State v. Cook, 179 N.J. 533, 562 (2004) (stating the Court's intention to "establish a committee to study and make recommendations on the use of electronic recordation of custodial interrogations"). In admitting the recordings of custodial interrogations into evidence at trial, however, care must be taken to properly address statements that are not otherwise admissible.
It is well-settled that police officers may not give testimony suggesting that others have implicated the defendant in a crime, State v. Branch, 182 N.J. 338, 349-50 (2005); State v. Bankston, 63 N.J. 263, 271 (1973), and officers may not state their opinion on the veracity of a defendant's statements, State v. Frisby, 174 N.J. 583, 593-94 (2002), or a defendant's guilt, State v. McLean, 205 N.J. 438, 461 (2011). In addition to the potential for officers to make statements violating the foregoing principles during an interrogation, it is not difficult to foresee the possibility of an officer referring to a defendant's prior bad acts during the course of an interview. See N.J.R.E. 404(b) (limiting admission of such evidence). Consequently, care is required.
Where a defendant raises a valid objection based on inclusion of otherwise inadmissible evidence in the video-recording of an interrogation, the court should consider whether redaction is necessary or a limiting instruction directing the jury on permissible and impermissible uses of the testimony will suffice to prevent misuse of the evidence. Assuming no basis for exclusion, the State may generally admit out-of-court statements of the defendant as a statement of a party opponent, N.J.R.E. 803(b)(1); State v. Covell, 157 N.J. 554, 572 (1999), but that evidence rule does not apply to statements made by officers interrogating the defendant, which are admissible for the limited purposes of providing context for the defendant's responses relevant to the voluntariness of the defendant's statement.
During this interrogation, the officers repeatedly mentioned that others had given them information implicating defendant in this crime. Those assertions ran afoul of Branch and Bankston to the extent that the officers suggested that the persons who did not testify at trial provided that information.
Recognizing the hearsay problem, the judge redacted statements that suggested three persons had provided them with information and directed the jurors that Benekin, who did testify at trial, was their source. The judge gave the jurors this direction:
Ladies and gentleman of the Jury, you heard and have seen a video tape[]. And that would be a videotaped statement of Michael Graham. During the course of that statement the police repeatedly indicated that they had knowledge of the events that took place on January 6th, 2008 from other sources.
They spoke these words for two reasons. Number one, it is first and foremost an
interrogation tactic to indicate that they have knowledge that a potential suspect does not possess in order to gain information from that suspect. It's a tactic they use; okay?
Words like, we have things wrapped up, we know you're lying, people tell us, we know the answers, we did our homework, it's mounting, video cameras don't lie, talk to people, don't have to specify who they are, we fingerprint, they were here before you, you think they didn't talk, we got guys throwing you under the bus, you plotted the whole robbery.
These are all fictitious things that police offers say as a tactic during an interrogation. Even though they're not accurate or truthful, they're permissible under our law; okay? Police are allowed to trick a potential suspect in order to gain information. And that's the basis for most of that language.
Second thing, in this case, the only source of information about the events of January 6th, 2008, at . . . Old Bergen, relative to Michael Graham as being at that location, okay, that the police possessed at the time Michael Graham was questioned, was Rashawn Benekin. He was their only source of information, relative to Michael Graham's presence there. And you heard Rashawn Benekin testify last week. There is no other source; okay?
In circumstances similar to those presented here, a judge should direct the jurors that they may not consider anything the officers stated during the interview for the truth of the matter asserted, if for no other reason than the fact that no proper basis for admitting this implicit hearsay was established. See Bankston, supra, 63 N.J. at 271 (discussing the hearsay statements implied by officers testifying about information concerning defendant's guilt).
But defendant did not object to the instruction at the time or urge the judge to elaborate. In the absence of an objection, the question for this court is whether the admission of the tape subject to the instruction given is "of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. McGuire, 419 N.J. Super. 88, 143 (App. Div.), certif. denied, 208 N.J. 335 (2011).
To establish the necessary prejudice, defendant relies on Frisby, and the Court's conclusion that the officers had indirectly vouched for a State's witness by indicating that they believed that witness's version of the events. 174 N.J. at 595-96. In this case, any suggestion that the officers believed Benekin's version and not defendant's was too subtle for us to detect. The chain of events made it clear that the officers did not have adequate cause to arrest defendant before the interview. Moreover, while the officers referred to what others had told them, not one ever said what they had been told until defendant admitted that he brought the gun to Benekin and Wilson. In this case, there is reason for confidence that defendant's convictions rest on the evidence and his admissions, not on any vague impression of the State having adopted Benekin's version over defendant's account. At least with respect to Benekin's testimony about defendant's role, their accounts matched in all respects material to the guilty verdicts. The differences — whether defendant gave the gun to someone or it was taken from him and whether defendant was with Benekin when he hid the guns on Linden Avenue — were immaterial to his role in the conspiracy to commit armed robbery and armed burglary and his possession of the firearm.
Defendant also objects to a portion of Detective Crowe's testimony at trial in which he described defendant as changing his story from denial of any involvement, to admitting he was at the scene, and eventually to bringing the gun to the scene and going into the hallway. The detective's testimony accurately summarized defendant's various accounts and while it was cumulative and risked improper injection of the detective's opinion, it was descriptive of what the officer heard and saw and was delivered without a misstep. It was nothing more than an unnecessary introductory summary of the course of the interview that the jurors were about to see and hear for themselves. As such, it was clearly incapable of leading to an unjust result. R. 2:10-2.
For all of the foregoing reasons, we reject defendant's claim that the admission of the redacted recording of his interview and Detective Crowe's testimony about that interview, viewed alone or cumulatively, require reversal of his conviction.
III
We have considered the arguments defendant has offered to establish that his sentence is excessive and determined that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
The State notes that the judgment of conviction does not reflect the mandatory period of parole ineligibility that accompanies defendant's concurrent five-year sentence for possession of a handgun without a permit. N.J.S.A. 2C:39-5b; N.J.S.A. 2C:43-6c. Although the correction of the judgment to reflect this conviction will not affect defendant's overall sentence or period of parole ineligibility, it should be made.
Affirmed and remanded for correction of the judgment of conviction as set forth in Part III 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