Opinion
DOCKET NO. A-1531-10T3
10-29-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AARON M. ORR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent, and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-05-1200 and 09-06-1559.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Aaron M. Orr appeals his conviction for three counts of first-degree robbery and two counts of second-degree robbery, all in violation of N.J.S.A. 2C:15-1, as well as three counts of second-degree witness tampering, in violation of N.J.S.A. 2C:28-5(a). He also appeals his aggregate sentence of incarceration for life plus forty-five years. We affirm the conviction and part of the sentence, but remand for reconsideration of the sentence for two of the three witness-tampering counts.
He was also convicted on a count of second-degree conspiracy, N.J.S.A. 2C:5-2, related to witness tampering that was merged at the time of sentencing.
I.
We discern the following facts and procedural history from the record on appeal. For the purposes of this opinion, we concentrate on the facts concerning Orr's arrest and interrogation, as developed at the Miranda hearing, and the trial testimony concerning the alleged witness tampering.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On February 20, 2006, Somers Point Police Officer Scott Handson was investigating an armed robbery at the Burger King in Somers Point. He learned that an employee had been robbed at gunpoint earlier that morning, and was given a description of the assailant and the handgun by the employee.
As Handson was driving around the area, he observed a gold-colored car with tinted windows in front of a laundromat. The car matched the description of the vehicle described by a witness to the robbery of Primo Pizza in Somers Point two days earlier. The police dispatcher informed Handson that Orr was the registered owner of the vehicle, and that Orr was wanted for armed robberies in Maryland.
Handson looked through the laundromat's windows and saw an individual fitting the description provided by the victim of the Burger King robbery. As the man came out of the laundromat, Handson approached him. The man identified himself as Michael Haskins. While talking to Haskins, Handson observed another man inside the laundromat who also fit the description provided by the victim. He went inside and approached the second man, who identified himself as Aaron Orr.
The police subsequently determined that Haskins was not involved with any of the robberies.
Handson asked Orr to come outside. Once outside, he placed Orr under arrest and advised him of his Miranda rights, using the card that he always kept with him. Handson testified that Orr did not indicate that he wished to speak to an attorney or refuse to talk. According to Handson, Orr was "[v]ery calm, very cooperative," and did not appear to be under the influence of either alcohol or drugs. Orr was transported to the police station by another officer, while Handson remained on the scene for the tow truck to remove Orr's vehicle.
According to Handson, Orr's car was "secured," but was not searched until after the police obtained a search warrant that night.
Somers Point Police Captain Michael Boyd was on his way to investigate the Burger King robbery when he was advised that a vehicle matching the description of the one involved in the Primo Pizza robbery had been spotted at the laundromat. When Boyd arrived at the laundromat, the two males were still inside.
Boyd testified that Handson read Orr his rights at the scene, as he was walking Orr to the patrol car and placing him in the backseat. According to Boyd, he did not hear Orr ask to speak to an attorney or invoke his right to remain silent at any time. Boyd also testified that Orr did not appear to be intoxicated.
Boyd asserted that he did not ask for Orr's permission to search his car. He denied placing Orr in the front seat of his own vehicle or transporting him to police headquarters himself. Boyd also maintained that the car was not searched in the fifteen or twenty minutes it took for the tow truck to arrive.
Detective Sergeant Robert Somers, who was investigating the Primo Pizza robbery, testified that he arrived at the laundromat around 8:15 or 8:30 a.m. He did not talk to Orr, who had already been transported. According to Somers, Orr's car was not searched while he was at the laundromat. Somers stayed on the scene for about thirty to forty-five minutes.
Orr was brought to the interview room sometime before 11:30 a.m. and was interviewed by Somers. Somers, who testified that he knew Orr had been advised of his Miranda rights by another officer earlier that morning, repeated them using a Miranda rights form. Orr initialed each right and signed the form, and Somers also signed the form. It is dated February 20, 2006, at 11:35 a.m.
Somers described Orr as "calm, [but] not real cooperative." He testified that Orr seemed not to "know anything about anything." According to Somers, Orr did not appear to be under the influence of either alcohol or drugs while at police headquarters.
Somers told Orr what the police believed he had been involved in and what evidence they had in terms of the pictures of his car and suspect pictures from another robbery. Somers outlined the case against him and "was pretty confident with it." Orr did not admit involvement in any of the robberies at that point.
The interview lasted about forty-five minutes to an hour. Somers denied threatening Orr, whom he testified never asked for a lawyer or indicated that he did not want to talk anymore. According to Boyd, although he was in the building when Somers interviewed Orr, Somers "was the sole person" who conducted the interview. Somers testified that he did not believe that Boyd came into the interview room.
Orr's parents arrived at police headquarters and asked to speak with him. Boyd claimed that he advised them of the seriousness of the charges and then brought them back to the cell block area where Orr was being held. He "stayed in the vicinity" for safety reasons while they spoke with their son for ten or fifteen minutes. Boyd testified that he did not advise the parents to tell Orr to confess, nor did he promise them anything.
When Somers returned to the station around 4:00 p.m., he went to Orr's cell. According to Somers, Orr "said he wanted to talk to me again." Somers brought Orr back to the interview room between 4:30 and 5:00 p.m. Somers again advised Orr of his Miranda rights.
What Somers described as a pre-interview began sometime before 5:00 p.m. Somers did not use a tape recorder right away because "[we] weren't ready to take a statement yet." Somers did not recall if Boyd or another officer was present in the interview room at the time.
Somers maintained that Orr confessed during the pre- interview. Somers then began taping a statement from Orr, at the beginning of which Somers again advised Orr of his Miranda rights. The audiotape of the interview with Orr was played for the trial judge during the Miranda hearing.
In the statement, Orr agreed that he waived his Miranda rights and admitted to using a "toy gun," or a "utility knife" held to look like a gun, during several robberies or attempted robberies in 2006, including: (1) the Dairy Queen in Hamilton Township on February 14; (2) the Dunkin Donuts in Mays Landing on February 17; (3) Primo Pizza in Somers Point on February 18; (4) the 7-11 in Linwood on February 19; and (5) the Burger King in Somers Point on February 20. According to Orr, he committed the robberies because of his "gambling problem."
According to Orr, he used the utility knife for the Burger King robbery.
Orr denied involvement in several other robberies about which Somers questioned him. They included Nino's Pizza in Hamilton, Dunkin Donuts in Hamilton Township, Burger King in Pleasantville, 7-11 in Egg Harbor Township, and the Wonderbread store in Egg Harbor Township. All of those robberies were nevertheless included in the indictment subsequently returned against Orr.
Somers testified that he did not make any promises to Orr before he confessed. He also maintained that he did not know what caused Orr to change his mind about admitting to the criminal activity. According to Somers, no other officers assisted him with the interrogation. Somers also testified that he "may have" given Orr a cigarette, but he did not recall doing so. He also testified that Orr was given food during the interview.
Orr's parents, Nevalan and Ezell Orr, testified that their son was living with them in Maryland at the time of his arrest. Nevalan knew that Orr went to the casinos "from time to time." Orr's parents knew that he was on probation after pleading guilty to armed robbery in Maryland. They testified that he had spent "a little over two and a half years" in jail for two robberies.
Because Orr's parents and sister share his last name, we refer to them by their first names for the sake of convenience.
According to Orr's parents, Orr was sleeping when they were taken to his jail cell. They spoke with Orr for approximately ten to thirty minutes from outside the cell. They both testified that Boyd was standing "[w]ell within earshot." They were told that they could not speak to Orr alone for "security reasons." Both parents testified that Boyd told Orr that it would "make it easier for him" if Orr "cooperated with them." Ezell thought Boyd's statement meant that he "wanted him to confess to something" and that "he would be a little lenient with him or something."
Nevalan testified that Orr responded that he "already told them I want to talk to a lawyer" and repeated that he wanted to speak to an attorney "[m]aybe six, seven" times. She testified that Boyd "didn't really have a response" to those assertions. Nevalan did not advise Orr to cooperate with the police.
Ezell also testified that Orr said he wanted to speak with a lawyer "several times." He thinks that he did "mention" to Orr that it might be in the family's best interest if he cooperated and provided a confession. Orr responded that he wanted to talk to a lawyer.
Orr testified that he was a resident of Maryland at the time of his arrest, but was working in New Jersey with the permission of his parole officer. He had pled guilty to two armed robberies in Maryland. Orr maintained that he had not confessed or provided a statement to police following his arrest in Maryland because he wanted to speak to a lawyer first. Although he had "heard about Miranda rights" during the Maryland arrest, he testified that neither Boyd nor anyone else had advised him of those rights at the time of his arrest in New Jersey. Orr maintained that nobody read him his Miranda rights until "the taped statement[] was being made" in the late afternoon on February 20, when Somers read them to him.
Orr further testified that he did not speak to Handson until the day after his arrest when he was being fingerprinted. On cross-examination, when asked if Orr thought the police had fabricated the fingerprint card dated February 20, 2006, he responded "[they've] done a lot of things that they're not supposed to do."
With respect to the circumstances of his arrest, Orr testified that it was Boyd who asked for his identification when he was inside the laundromat. They then walked to his car to get the identification. Boyd asked to search Orr's car, but Orr responded that he did not want it searched without a warrant.
Orr was not aware that he was a suspect in the robberies until Boyd arrested him, handcuffed, and placed him in the front seat of his unmarked police car at around 8:00 a.m. Orr stated that during the ride, Boyd asked him if he "wanted to talk about the robberies" and he responded that he "wanted [his] lawyer." Boyd told him that it would be "best" for Orr to tell him about them now "because it would be easier on [him]."
Orr was brought into police headquarters around 9:00 a.m. He was strip searched before being placed in a cell. Between 9:30 and 10:00 a.m., Boyd brought him to "the kitchen area," where he asked Orr to provide a statement without reading him his Miranda rights.
According to Orr, he had only had three or four hours of sleep the night before and had not eaten anything that morning except "a pack of Starbursts." He was cold because he "really didn't have too much on and it was cold out."
Orr maintained that the questioning did not cease when he asked Boyd for a lawyer. He testified that Boyd and Somers alternated in asking him questions. They talked about how Orr should confess to "make it easier" on himself. They showed him items they had retrieved from his car, like clothing, glasses, and "the utility knives," and said they were related to "certain robberies." Orr testified that he kept repeating that he wanted to speak to a lawyer.
According to Orr, Boyd "started to get frustrated." "Boyd was like the bad cop" and Somers acted "[l]ike he was going to do [Orr] favors." Somers then told Boyd to leave.
Orr testified that he had been questioned for about three or four hours before his parents arrived. He was then placed in his cell, and his parents were brought in about five minutes later. Orr claimed Boyd was present when he spoke with his parents for about fifteen or twenty minutes. When his mother asked Boyd to leave them alone, Boyd refused for "security reasons."
Orr maintained that Boyd interrupted his mother in an effort to get Orr to talk, again saying it would be "easier" for him and his family if he confessed or talked. According to Orr, Boyd told them that "he was in charge of the bails, that he would make it lighter for them to take [him] home," and that "the judge would look at it as if it was just one charge instead of all of them separate." Orr further testified that Boyd promised that he would be able to go home with his family and that he "wouldn't have to see so much time." Orr's parents supported his decision to wait for a lawyer, but said they could not afford one.
Approximately ten minutes after Orr's parents left, Somers brought Orr back to the kitchen area for more questioning. Orr characterized Somers as "running his spiel about what he thought happened, what part he thought [Orr] had in it." Orr did not volunteer any information and continued to request a lawyer "quite a few times."
Orr testified that Somers left the room and returned with a black gun with a "woodgrain handle," which he put on the table in front of Orr. Somers "would pick it up, speak about the weight, it looks like a nice gun, it's kind of light" and he "would try to get [Orr] to touch it." Orr maintained that Somers left briefly with the gun still on the table, and then returned and started talking about the gun again. Orr asserted that Somers whispered in his ear that he "could make it look like [Orr] tried for the gun," after which Orr "chuckled at him." Somers responded, "[O]h, you monkeys think you're tough."
Orr asserted that Somers put his service revolver to the back of his head. According to Orr, when he felt the gun pushed up against the back of his head, he "almost peed on [him]self." Orr told Somers "tell me whatever you want to tell me, don't shoot me." He then decided to do "whatever [Somers] wanted" because he was afraid Somers was going to shoot him. Somers gave Orr a couple cigarettes and a few minutes to calm down.
Orr then gave a statement. He maintained, however, that he "would've never talked" to Somers had it not been for the gun incident. Orr asserted that he did not volunteer information. Instead Somers would "tell [Orr] what was going on and he just agreed to it."
About an hour later, according to Orr, Somers brought out the tape recorder and read Orr his Miranda rights for the first time that day. Somers told him not to say anything out of the ordinary on the tape "or the deal would be no good." The "deal," according to Orr, was bail so that his family could take him home and all the charges would run together.
Orr maintained that the tape was stopped a few times because he "would forget what was said." Somers would rewind the tape and start it again if Orr "didn't remember or [] took too long to answer." He testified that Somers told him what to say when the tape was off.
In his recorded statement, Orr explained that he had committed the robberies because of his gambling problem. At the Miranda hearing, Orr admitted that he did have a gambling problem, but maintained that Somers had told him what to say in his statement because the police found his "casino cards" in the car. Orr maintained that Somers allowed him to say that the gun used was a toy gun because they did not find a real gun when they searched him or his car.
We now turn to the facts related to the witness tampering charges. Orr's nineteen-year-old sister, Kendahl Lee Orr, testified as part of the State's case-in-chief at trial. She lived in Maryland with her parents. She testified that she received letters from Orr in April or May 2009 asking her to make phone calls to witnesses or to get "[a] male" to do so. Kendahl asked her boyfriend, Paul Prevost, to make the calls. She knew the letters were from Orr because she recognized his handwriting and they had his name on them.
Kendahl identified the envelopes and letters sent to her by Orr. She read the letters to the jury. One letter stated the following:
What's good with Paul? Is he hanging in there? . . . What did he say about that phone card? When you get it, make sure it has a 609 area -- A.C. area code phone number on it. Also I will need -- I will need you to have that because I go to trial the following Monday. My freedom depends on it -- depends on you doing this for me.The letter included the names and other information for three witnesses who were to testify at the trial. Kendahl testified she gave the letter to Prevost.
Enclosed is the people [sic] that you will have to get at. I don't have them all, but it's a start. Have Paul or some other nigger do it ASAP -- A S A P. When you get that -- when you get that, only use it to do what I need you to do. Don't answer it if anybody calls you on it. Say whatever you have to say to get them to change their minds. I'm including their Social Security numbers so that you know that you're not -- so that they know you're not playing. And please get this done for me A S A P. Thank you and I love you.
Don't leave any messages on the voicemail. If you have to -- if you have -- if you have to threaten people with actually leaving a message with -- leaving a message with, do so. Don't use my name or yours. Just let them know about what happens to those who snitch. Love, Aaron.
A second letter from Orr to Kendahl included the following:
Listen, I'm including that info again. Please don't lose it or get it washed again. I go to trial May 4th and I need this doneA third letter included the following:
before May 3rd. I hope it's not confusing and that it won't be too much for you. I wouldn't have to do things this way if they would practice law and order like they were supposed to. But since they're just doing me dirty, it's only right that I do them dirty.
Google the names -- Google the names and make the necessary corrections to the names. My freedom definitely depends on it. And I'm sorry that I even have to include you in my B.S. I thank you very much for looking out for me and keeping me in your best interest. I owe you big. I love you. I need this ASAP.
Google every one of these names just to be sure of the info and phone numbers before you call them. My intel is a little behind considering I been gone for so long. All of these happened in 2006 between January and February. Call them up, first letting them know that you have their Social Security numbers and home addresses -- home address. Repeat the infos if necessary. Tell them that snitching will not be a good thing for them and their families and that they will be -- and that they will be found anywhere.This letter included the same three names, as well as the name and information related to an additional witness.
Tell them that if they proceed in the robbery matter, the 2006 -- in 2006, points anybody out or shows up to court, then the penalty for snitching will cost them their lives.
Also tell them that if they alert anyone of these threats, then they will suffer the same penalty. Tell them if anybody questions whether or not they will be coming to court or make any further statements, to say no because of not wanting and never want -- because of not wanting and never wanted anything to do with the matter.
Tell them to stop snitching after they say they understand. Good luck, Aaron. Don't say your name and have Paul or one of his boys do it. I need -- I need a male's voice. Justin can't -- Justin can't do it because he shares my accent.
I go to court May 4th. Have it all done before May 3rd.
On cross-examination, Kendahl testified that she knew she was breaking the law and could be put in jail for doing what the letters asked her to do. She admitted that she and Prevost were indicted for intimidating or attempting to intimidate witnesses. She had pled guilty and agreed to testify against her brother as part of a plea bargain.
Prevost also testified for the State. He had never met Orr, but testified that Kendahl was his girlfriend and the mother of his child. Kendahl gave him Orr's letters in April 2009. He telephoned three of the witnesses listed, but was only able to reach one. He told the witness that "if she would've come to court, something would happen to her such as being hurt." Prevost testified that he pled guilty and received probation in exchange for his cooperation, although he had faced five to ten years in prison for a second-degree offense.
Orr was the subject of two indictments. The first indictment was returned in May 2006. It contained thirty counts charging Orr with robbery, conspiracy, and weapons offenses related to eight robberies. The State moved for a single trial on the counts related to the five robberies that took place between February 14 and 20, arguing that the "[e]vidence recovered on the last day of the robberies links the defendant to each of th[ose] five armed robberies." Over Orr's objection, the trial judge granted the State's motion.
The Miranda hearing took place over several days in January 2009. After hearing the testimony and argument of counsel, the trial judge delivered an oral opinion explaining his reasons for allowing the State to use Orr's confession at trial. The judge found that "[Orr] did not invoke his right to counsel during any of his interactions with police" and that he had been "read his Miranda rights verbatim with a card produced by [Handson], almost talismanically at the time of the arrest." The judge found that Orr had been advised of his Miranda rights again at the police station and agreed to speak to the officers, initially denying all involvement in the crimes.
The judge found that Orr's "detention was not prolonged" and there was "no evidence of police misconduct." The judge further found the detention facilities and interview rooms were "clean and comfortable" and "not unduly cold, austere or overbearing or oppressive in nature as suggested by the defense." The judge concluded that Orr was "treated well, given rest and was generally in comfort."
The judge credited Boyd's testimony that he stood "down the hall and could not hear what the parents and [Orr] discussed." The judge characterized the parents' testimony as "contrived and well rehearsed" and "incredible." He also found "[Orr's] testimony to be incredible with respect to the police interview that resulted in a confession." The judge did not believe that Orr's confession was coerced.
In sum, the judge ruled that Orr "knowingly, intelligently and voluntarily waived his rights to . . . silence and to counsel." He determined that Orr's statements to the police would be admissible at trial.
The second indictment was returned in January 2009. It charged Orr with one count of second-degree conspiracy, contrary to N.J.S.A. 2C:5-2, and seven counts of second-degree witness tampering or attempted witness tampering, contrary to N.J.S.A. 2C:28-5(a).
In November 2009, the State moved for a joint trial of the counts from the two indictments related to the five robberies that took place between February 14 and 20, 2006. At the time, Orr had separate counsel for each indictment. Neither counsel opposed the motion. The trial judge granted the motion for the reasons expressed in a letter decision.
The jury trial took place over six days in November and December 2009. Orr's motion for a judgment of acquittal at the close of the State's case was denied. After deliberating for two days, during which it requested playbacks of the surveillance videos and the direct examination of one witness, the jury reached a "partial verdict" on December 3. The jury found Orr guilty on five counts of robbery, one count of conspiracy to tamper with witnesses, and three counts of witness tampering, but could not agree on a verdict on the weapons-related counts. Without objection, the judge accepted the partial verdict.
Orr was sentenced on March 4, 2010. The judge granted the State's motion for an extended term under N.J.S.A. 2C:4 3-7.1, as to which there was no objection. The judge found aggravating factors three, six, and nine and no mitigating factors. On the witness tampering indictment, the judge sentenced Orr to three consecutive terms of five years each. The conspiracy count was merged with one of the substantive counts. On the robbery indictment, Orr was sentenced to: (1) a term of life imprisonment with no eligibility for parole on the first-degree count related to the Primo Pizza robbery on February 18, 2006; (2) two consecutive terms of five years each on the two second-degree counts, with an eighty-five percent period of parole ineligibility and three years of parole supervision; and (3) two consecutive terms of ten years each on the two other first-degree counts, with an eighty-five percent period of parole ineligibility and five years parole supervision. The aggregate sentence was life, plus forty-five years.
This appeal followed.
II.
Orr raises the following issues on appeal.
POINT ONE: THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO SEVER THE ROBBERY COUNTS FROM THE WITNESS TAMPERING COUNTS, THEREBY DENYING THE DEFENDANT A FAIR TRIAL.
POINT TWO: THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE LIMITED USE OF THE OTHER-CRIMES EVIDENCE. (Not Raised Below)
POINT THREE: THE COURT'S FAILURE TO REDACT REFERENCES IN DEFENDANT'S STATEMENT TO OTHER ROBBERIES DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
POINT FOUR: DEFENDANT'S CONFESSION WAS OBTAINED IN VIOLATION OF HIS DUE PROCESS RIGHTS.
POINT FIVE: THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985) cert. denied, 475 U.S. 104 (1986).
A.
We begin our analysis with Orr's arguments concerning the admissibility of his statements to the police. He contends that the trial judge erred in allowing the use of those statements at trial because they were obtained in violation of his Miranda rights.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007 ).]
Although not applicable here, we note that a reviewing court does not owe the same level of deference if the judge's decision is based primarily on the motion judge's review of a video of the interrogation. State v. Diaz-Bridges, 208 N.J. 544, 566 (2011).
In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). We generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility. State v. Barone, 147 N.J. 599, 615 (1997). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's rights to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).
In Diaz-Bridges, supra, 208 N.J. at 564-67, the Supreme Court reiterated the considerations applicable to determining whether a defendant has invoked the right to remain silent.
If that invocation is clear and unambiguous, we have required that it be scrupulously honored. State v. Johnson, 120 N.J. 263, 281 (1990) (citing Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). If, however, the invocation is equivocal or ambiguous, leaving the investigating officer "reasonably unsure whether the suspect was asserting that right," id. at 283, we have not required that the interrogation immediately cease, but have instead permitted officers to clarify the otherwise ambiguous words or acts. Ibid.
As it relates to the invocation of the right to remain silent, both the words used and the suspect's actions or behaviors form part of the inquiry into whether the investigating officer should have reasonably believed that the right was being asserted. As a result, the court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked.
. . . .
. . . [A]s we have recently reiterated, if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified. Elders, supra, 192 N.J. at 245 (observing that trial court based its evaluation on police testimony because patrol car's videotape showed only part of interaction with individuals involved in traffic stop).
. . . .
We have considered whether defendants invoked the right to silence in a variety of contexts, and have established principles that can be summarized without great detail. A suspect who repeatedly responded to questions by saying "I can't talk about it" and who engaged in a persistent pattern of refusal to answer was not "obligat[ed] to state his position more clearly" in order to invoke the right to silence. Johnson, supra, 120 N.J. at 284. A suspect who told the investigator "I don't believe that I want to make a statement at this time" sufficiently invoked the right to silence that the failure to honor the request required suppression. [State v. Hartley, 103 N.J. 252, 255-58 (1986)] (requiring re-administration of Miranda warnings during renewed attempt to initiate questioning).
On the other hand, we deemed a suspect's statement that he wanted an opportunity to "lie down and think about it" before responding, although arguably far less ambiguous a reference to the right to remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent. [Bey], supra, 112 N.J. at 136-37 ("law enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning"). Similarly, as our Appellate Division has concluded, a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored. [Burno-Taylor, supra, 400 N.J. Super. at 604].
A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent, and voluntary. Patton, supra, 362 N.J. Super. at 42. The trial judge must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include consideration of the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether [] questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).
Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).
A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862 ). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.
Here, the State and Orr presented very different versions of the events leading up to the making of Orr's recorded statement. The State's witnesses testified that Orr was repeatedly advised of his Miranda rights and that he never requested an attorney. Although Orr initially denied any knowledge of the criminal activity at issue, Somers testified that Orr subsequently changed his mind and asked to speak with him a second time. During the second interrogation, Orr admitted to his involvement in the robberies, after which he made the recorded statement played before the jury.
In contrast, Orr testified that he was never advised of his Miranda rights until he made the recorded statement, but had repeatedly expressed a desire to consult with counsel and refused to make a statement to the police. He testified that he was tired, hungry, and cold. Most significantly, he testified that he only agreed to make a confession after Somers put a gun to his head, told him what to say, and promised lenient treatment in return. Orr's parents supported some aspects of his testimony, although they did not claim to have been present during his interrogation.
There can be no doubt that, had the trial judge credited Orr's version of events, the judge would have been constrained to suppress the statements given to the police under the legal principles outlined above. However, the judge did not credit Orr or his parents. Instead, he credited the testimony of the police officers concerning the repeated giving of the Miranda warnings and Orr's treatment while at police headquarters. Our review of the record finds ample support for the judge's findings, especially given our required deference to his credibility determinations.
Although there may have been some inconsistencies in the testimony of the State's witnesses, there was more than sufficient evidence to support a finding, "beyond a reasonable doubt, that [Orr]'s waiver [of his Miranda rights] was knowing, intelligent and voluntary in light of all the circumstances." Patton, supra, 362 N.J. Super. at 42 (internal quotations and citations omitted).
B.
We now turn to Orr's contentions concerning other-crimes evidence and the joint trial of the related counts from the two indictments.
i.
Orr first argues that the trial judge erred in permitting the State to proceed with a joint trial of the offenses related to the robberies committed between February 17 and 20, 2006, and the efforts at intimidating the witnesses who were expected to testify about them.
Orr contends the joint trial was held over his objection, an argument disputed by the State. The trial judge's letter opinion granting the State's application for a joint trial supports the State's argument. The judge noted that defense counsel in the robbery indictment did not object and defense counsel in the tampering indictment never responded to the motion.
"Joinder is permitted when two or more offenses 'are of the same or similar character or are based on . . . [two] or more acts or transactions connected together or constituting parts of a common scheme or plan.'" State v. Morton, 155 N.J. 383, 451 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (quoting R. 3:7-6)). The decision to grant or deny a severance rests within the trial judge's sound discretion and is entitled to great deference on appeal. Id. at 452; State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997). A trial judge's decision will not be reversed absent a clear abuse of discretion. Mance, supra, 300 N.J. Super. at 53.
Central to the inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 [now rule 404(b)], in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989). If the evidence would be admissible at both trials, the judge may try the charges together because a defendant will not suffer any more prejudice in a joint trial than he would in separate trials. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
In seeking joinder in the Law Division, the State argued that the witness tampering evidence was relevant and admissible in the robbery trial as "evidence of 'consciousness of guilt.'" Orr now argues that the trial judge should not have permitted the State to try the robberies and witness tampering charges jointly because "evidence of witness tampering should have been excluded under a N.J.R.E. 404(b)/Cofield analysis." He also argues that "any marginal relevance the evidence [might] have had is vastly outweighed by its undue prejudice."
We disagree. Our courts have repeatedly held that threats against a potential prosecution witness can be admitted into evidence under N.J.R.E. 404(b), or its predecessor, because they manifest consciousness of guilt. See, e.g., State v. Yough, 208 N.J. 385, 402 n.9, (2011); State v. Hill, 47 N.J. 490, 500-01 (1966); Goodman, supra, 415 N.J. Super. at 232; State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994); State v. Pierro, 253 N.J. Super. 280, 285-87 (App. Div.), certif. denied, 127 N.J. 564 (1992).
N.J.R.E. 404(b) generally precludes the admission of evidence pertaining to other crimes or wrongs, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue of dispute." In State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court articulated a four-factor test to govern the admissibility of such evidence for those permitted purposes.
The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;In Williams, however, the Court observed that the second Cofield factor "is not one that can be found in the language of Evidence Rule 404(b). Cofield's second factor, therefore, need not receive universal application in Rule 404(b) disputes." Id. at 131.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Williams, 190 N.J. 114, 122 (2007) (citing Cofield, supra, 127 N.J. at 338).]
One of the letters from Orr to his sister directed her to have her boyfriend tell the witnesses "that snitching will not be a good thing for them and their families and that they will be . . . found anywhere" and that "the penalty for snitching will cost them their lives." Another letter stated that Orr's "freedom definitely depends on it." Those letters, as well as the other letters and related testimony, could quite reasonably be construed by a jury as manifesting consciousness of guilt. Consequently, the first Cofield factor was satisfied.
Although the offense of witness tampering was not similar to the offenses charged in the robbery indictment, they were clearly related to the robbery counts in that the witnesses were scheduled to testify concerning the robberies. So, to the extent it is applicable, the second Cofield factor is satisfied. The evidence was certainly clear and convincing, inasmuch as the letters were identified by Orr's sister as in his handwriting, thereby satisfying the third Cofield factor. As to the fourth Cofield factor, we find no abuse of the judge's discretion in determining that "the probative value of the evidence" did not outweigh "its apparent prejudice." Williams, supra, 190 N.J. at 122.
Even if the judge had denied the State's request for joinder, the evidence would have been admissible at a separate trial involving the robbery indictment. The analysis would have been essentially the same as that outlined above, as would our standard of review of the resulting decision. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted).
For all of these reasons, we find no error in the trial judge's decision to grant the State's application for a joint trial on the related counts from the two indictments. The judge appropriately exercised his discretion in that regard.
ii.
Orr next argues that the judge failed to instruct the jury properly with respect to the use of the witness tampering evidence, allowing the jury to conclude that he "had a propensity to commit crimes."
Orr maintains that the sole instruction provided by the trial judge did not instruct the jury on "the limited uses of the witness tampering evidence with respect to the robbery counts." He also contends that the judge failed to explain "the abstract issue of consciousness of guilt within the context of the case" or "how the other crimes evidence would be admissible on this issue."
Following the State's opening statement, during which the prosecutor outlined the witness-tampering evidence, the judge gave the following instruction:
Now, you may hear testimony that the defendant at one time or the other was in the Atlantic County Justice Facility, otherwise known as the county jail, where he had some form of relationship to that facility.
And I'll tell you now and I'll remind you throughout trial that this information is not to be used to show in any way that the defendant's a bad person or that he is disposed to commit crimes. An innocent person can be in jail simply by reason of his inability to make bail on any given charge. Whatever brought the defendant to the Justice Facility is totally irrelevant to your deliberations in this case and you should not speculate about it. You should not consider this in your deliberations in any way.
This evidence is before you solely for the limited purpose as it pertains to evidence introduced to show motive or purpose or a connection to the alleged offense regarding witness tampering.
[(Emphasis added).]
At the start of the final charge, the judge instructed the jury that:
if I gave a limiting instruction—and I gave several and I'll remind you of them as we go through this—as to how to use certain evidence, that evidence must be considered by you for that purpose only and within the limitations that I give you. You can't use it for any other purpose.
. . . .
. . . [Y]ou heard testimony about the defendant sending mail to his sister and having telephonic contact with his family members and her while he was in the Atlantic County Justice Facility, also known as the county jail, during the time frame of April and May 2009.
As I have reminded you throughout the trial, this information is not to be used in any way to show that the defendant is a bad person or that he is disposed to commit the crimes that are -- he's charged with or any other crime. An innocent person can be in jail simply by reason of an inability to make bail on a given charge.
Similarly, you should not conclude that he must be guilty of the crimes charged because of his association at some time with the jail. Whatever brought the defendant to the jail or . . . had him there during this period of time is totally irrelevant to your deliberations in any way. This evidence of his custody in the jail is solely for the limited purpose as it pertains to the facts and circumstances surrounding the allegations of conspiracy to commit witness tampering and witness tampering.
The State had adduced this evidence to show the defendant's motive in seeking to have his sister and her friend tamper with witnesses and carry out his wishes since he was not at the time free to act for himself in the way he allegedly planned. The State had also adduced this evidence to show consciousness of guilt on the part of the defendant by seeking to discourage adverse testimony against him during the upcoming trial.
[(Emphasis added).]
Defense counsel made no objection at the end of the judge's charge. In addition, defense counsel told the judge he had no objection to the judge's proposed charge on the day after the charge conference. Similarly, just before the closing argument, when the judge asked if counsel had anything further with respect to the charge, defense counsel responded in the negative.
Consequently, we review the issue under the plain error rule, which requires reversal only if error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 335, 336 (1971).
Appropriate and proper jury charges are essential to a fair trial. The most critical part of any jury instruction is an explanation of the applicable law, which, in a criminal trial, includes an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt.
[State v. R.T., 411 N.J. Super. 35, 46 (App. Div. 2009), aff'd, 205 N.J. 493 (2011) (internal citations and quotation marks omitted).]
A jury charge is "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).
In considering a jury charge, plain error is [l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that ofSee also State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973) ("[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect.").
itself the error possessed a clear capacity to bring about an unjust result.
In determining whether a charge was erroneous, the charge must be read as a whole.
[State v. Jordan, 147 N.J. 409, 422 (1997) (internal citations and quotation marks omitted).]
"Where there is a failure to object, it may be presumed that the instructions were adequate . . . [and] that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003). Here, defense counsel not only did not object, he affirmatively informed the trial judge that he had no objection.
In the final charge, the judge informed the jury that Orr's presence in the county jail was not indicative of his being "a bad person or that he is disposed to commit the crimes . . . he's charged with or any other crime" and that the State "adduced [the witness tampering] evidence to show consciousness of guilt on the part of the defendant by seeking to discourage adverse testimony against him during the upcoming trial." Those instructions were the core guidelines for the jury's use of the evidence. That they might have been presented more elaborately does not result in an inadequate charge, especially in the absence of an objection or a request for more detailed language.
Our review of the charge as given, taken in context and in light of the record as a whole, convinces us that any omissions from the charge had no reasonable possibility of producing an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
C.
Orr next argues that the trial judge erred in admitting his statement as evidence at trial without redacting the extensive questioning about robberies unrelated to the ones being tried at that time. Although Orr never requested that the recorded statement be redacted before it was played for the jury, he now argues that it should have been. He also criticizes the limiting instruction given by the judge, as to which he never objected. Again, our review of the issue is governed by the plain error rule. R. 2:10-2.
After the recorded statement was first played for the jury, the judge informed counsel that he intended to instruct the jury at the end of the case that the jury should take "no notice of [the uncharged cases], that it's irrelevant, they should disregard it, that it's a matter of police procedure in questioning trying to solve and resolve open cases; defendant's not charged with them, he has no involvement with them and the matter is not for their consideration." The judge stated that he intended to give the limiting instruction "in the strongest possible terms." Defense counsel made no objection.
After the State rested, the judge read his intended charge to the attorneys. Defense counsel again made no objection. The judge "expressed [his] concern [] about the end of the statement where there was a discussion about open robberies, unsolved robberies, that the defendant was asked about." He offered "two different approaches" with respect to that part of the statement, including one "allowing it in with the limitations based on how you would like to argue the evidence or telling the jury to disregard it in its entirety."
The judge read the two alternatives for the instructions. Defense counsel advocated for the one that instructed the jury to disregard the references to other robberies entirely, while the State preferred the limiting instruction permitting the prosecutor to argue that Orr's refusal to admit to all of the robberies undercut the defense theory of coercion. The judge reserved decision.
After the defense rested, the judge raised the issue again. He observed that he was "concerned about the prejudice to the accused of mentioning uncharged misconduct." He asked the State to provide "some law" that would support its position.
The judge raised the issue again the next day:
In chambers last night, we discussed the statement of the defendant, which is in evidence. And the Court's concern relative to . . . [defendant] being questioned by police about unsolved robberies in the area around the same time of the ones under the indictment. Indeed, some of the ones that he was questioned about appear to have been indicted; some of them were charged but not indicted; and those matters are not joined at this point for trial and they abide the outcome of this matter.Defense counsel responded as follows:
Further discussion with counsel in chambers indicated to the Court that both sides wished to have that evidence available, not struck from the jury's consideration, so that they may therefore argue that evidence as they see it pertaining to the case. . . .
But it would appear that, while it is not [Evidence Rule] 404(b) evidence of other crimes that it's being asserted for, that it is more of a question under [Evidence Rule] 403 as prejudice and probative value having a bearing on this evidence. And with an appropriate limitation, the parties agree that the evidence should go to the jury so that they may be free to argue its impact upon their cases.
The State believing that it shows that the statement was given . . . voluntarily;
the defendant was free to deny or admit anything that he chose to do during a freely-given Mirandized interview.
The defendant for its part will indicate that it shows that Mr. Orr's will may have been overcome; that he initially had denied any involvement with anything. And taken in the totality with all the other circumstances of his detention and interrogation, that by asking him those questions, it showed that his will may have been overcome.
I normally would object, but in . . . the context of this case, part of the defense's contention is that there were a host of unsolved robberies and, you know, Mr. Orr, once he was at least fingered or at least believed to be involved in the Burger King robbery on the morning of the 20th of February, at that point, they were attempting to clear the books and bring out, you know, and ask him and hope that he might confess to other robberies for which he may or may not have been involved, Judge, including Nino's and some of the other incidences that are mentioned in the redaction. The jury will have this, is that correct, Judge, the transcript of --
. . . .
And, of course, you know, there was testimony, indication, by Detective Somers admitting that there was a pretaped preinterview, so to speak, at which obviously they would have necessarily discussed the facts and circumstances and the robberies that, you know, to which the detective thought it was relevant. And I'm going to use that to perhaps show that, you know, if, in fact, they had a preinterview, they basically should've already agreed upon
the robberies that were going to be discussed. And that in the course of the tape-recorded robbery, apparently some robberies came up that the defendant again, again feeling that his will has been overborne, at least again started becoming reluctant and started denying some of the robberies, Judge. And, you know, at some point, he had already made some admissions, Judge, but at that point, he was totally confused and, again in the absence of counsel, obviously made some admissions obviously which he now, you know, has -- are indicated was not the product of a free and voluntary mind, Judge.
The judge then reviewed the factors under Cofield and concluded that "[a]ny prejudice associated with asking the defendant questions about open cases is overcome by the value that both sides attribute to it in order to determine the very heart of the voluntariness and the intelligent nature of the statement given by the defendant." Defense counsel had no objection to the limiting instruction the judge proposed to read to the jury.
After charging the jury on the substantive law, the judge continued his charge with the following:
Now, you'll recall that you heard questioning . . . of the defendant by Detective Somers regarding certain unsolved robberies in the surrounding areas, including Egg Harbor Township and Pleasantville. Such questioning reflects police procedure and question techniques. The defendant is not charged or involved in this case in any such events. Indeed, there is no evidence that any such robberies
occurred at all. You should not conclude that by asking such questions, that the defendant is or must be guilty of the offenses charged against him here.
These questions and answers were admitted for the limited purpose of showing the facts and circumstances bearing upon the voluntariness of the statement inasmuch as he was, as the State would have it, free to admit or deny as he saw fit. Or you may consider that it bears upon the defendant's will being overborne, as the defense would have it, first denying all, then admitting some while still denying others. You may consider these circumstances in determining whether the statement's credibility or voluntariness is as it was just defined for you.
We find no error with respect to the judge's failure to redact the statement. It was played in its entirety without objection. When the judge initially announced his intention to give a strong limiting charge, defense counsel did not object or seek to have the charge amended. Ultimately, defense counsel opted to accept the charge favored by the State, which clearly informed the jurors that they "should not conclude that by asking such questions, that the defendant is or must be guilty of the offenses charged against him here." Defense counsel's position was taken for strategic reasons, as he explained to the judge as quoted above.
Viewed in context, Orr's argument that the limiting charge given by the judge was defective runs afoul of the invited-error doctrine, which "operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996).
In criminal matters, the doctrine "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is implicated "only when a defendant in some way has led the court into error." Ibid. "[W]hen there is no evidence that the court in any way relied on a defendant's position, it cannot be said that a defendant has manipulated the system. Some measure of reliance by the court is necessary for the invited-error doctrine to come into play." Ibid.
Our reading of the record makes it clear that the trial judge's decision to give the charge quoted above was heavily influenced by defense counsel's final position that he would use the questioning about other robberies as part of his argument in closing. In addition, the trial judge's analysis under N.J.R.E. 404(b) and Cofield, was not indicative of an abuse of his discretion in ruling on evidence. "Trial judges are entrusted with broad discretion in making evidence rulings." Muhammad, supra, 359 N.J. Super. at 388. "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." Loftin, supra, 146 N.J. at 357 (citations and internal quotation marks omitted).
Looking at the issue from the State's perspective, the fact that Orr refused to confess to some robberies was relevant to the voluntary nature of his confession to the five robberies being tried, particularly in light of Orr's testimony that he was coerced to confess. Given the judge's limiting instruction as to the use that could be made of the evidence, it's probative value outweighed the potential prejudice.
We see no basis to conclude that the jury's verdict would have been different had the statement been redacted or had the judge instructed the jury to disregard the unconfessed robberies entirely. Consequently, it was not plain error.
D.
Finally, Orr argues that his sentence was excessive. He contends that the terms of incarceration should have been concurrent rather than consecutive, arguing that the robberies, "although facially separate, were interdependent, as they were the result of a week-long robbery spree" and "were clearly the result of one single period of aberrant behavior taking place over a very short period of time." He also contends that the witness tampering "was facially distinct," but "also interrelated with the robberies and involved the same victims as the robberies."
Because a trial judge has discretion to decide if sentences should run concurrently or consecutively, our review of the length of a sentence is "limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Supreme Court admonished us in State v. Bieniek, 200 N.J. 601, 612 (2010), if "the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing." The question before us is not whether we would have imposed the same sentence or whether we consider it unduly harsh, but whether the sentence imposed by the trial judge conforms to the applicable law and finds support in the appellate record.
To determine whether to impose a concurrent or consecutive sentence, a judge should consider that "there can be no free crimes in a system for which the punishment shall fit the crime." State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The judge must also consider facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominately independent of each other;In addition, "sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing." Id. at 630. More recently, the Court reaffirmed the importance of focusing on the crimes, rather than the criminal with respect to sentencing as it relates to concurrent versus consecutive sentencing:
(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 to be imposed are numerous[.]
[Id. at 644.]
The focus of the sentencing court in considering whether to impose concurrent or consecutive terms for multiple offenses is different, however, than its focus in determining a particular sentence for a particular offense. For the latter, the sentencing court looks primarily to the individual defendant while for the former, it looks at the offense.In addition, a sentencing judge should consider the fairness of the overall sentence. State v. Ghertler, 114 N.J. 383, 391 (1989) (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
[State v. Friedman, 209 N.J. 102, 122 (2012) (quoting Yarbough, supra, 100 N.J. at 630).]
The trial judge articulated his consideration of the Yarbough factors as follows:
. . . [T]he Court has concluded that separate, consecutive sentencing should be imposed. Following a merger of the conspiracy count into the witness tampering counts consecutive sentences will be imposed on the remaining seven counts. State v. Yarbough, 100 N.J. 627 (1985) sets forth the guidelines for determining consecutive sentences. First, there can be no free crimes in a system for which the punishment shall fit the crime. In this case there were eight separate episodes of criminality against numerous victims committed at separate times and in separate places. Concurrent sentences would not recognize the many individual citizens, honest and hard-working people, who were violently imperiled by this dangerous recidivist. Consecutive sentencing is required in this case in order to meet the ends of justice to specifically deter and to individually punish this defendant for his many different criminal acts.
Moreover, the defendant's crimes in their objectives were predominantly independent of each other and involved separate acts of violence against separate victims. The defendant's many crimes were not indicative of a single period of aberrant behavior but rather a series of opportunistic criminal acts. The Court has taken care that the accumulation and aggregation of the successive consecutive terms for the same or similar offenses is not equal [to] the punishment for the first offense. Similarly, the Court has considered the overall accumulation of consecutive sentences for these offenses so as not to exceed the sum of the longest terms that could be imposed for the two most serious offenses. It is indisputable that
each of the defendant's crimes was independent of the other. Each had a different victim. Each was carried out in a separate place and time. Each was accompanied by its own separate acts of violence or threat of violence. . . .
We find no basis to overturn the consecutive sentences with respect to the robbery counts. As the judge correctly pointed out, each crime took place on a separate date and had a separate victim. The judge could legitimately conclude that they were "predominately independent of each other" and not "a single period of aberrant behavior" despite the fact that they took place over a relatively short period of time. The reasons for those consecutive sentences were clearly articulated by the trial judge and were consistent with the sentencing factors established by Yarbough.
In addition, we do not question the consecutive sentence for the witness-tampering count involving Asha Mandalaywala. That was clearly a separate crime, rather than a component of the robberies, and Mandalaywala was actually victimized a second time by the threat conveyed to her at Orr's request. Indeed, failure to impose a consecutive sentence for the count on which the witness was actually contacted and threatened by Prevost would appear inconsistent with Yarbough's admonition that there be "no free crimes." Yarbough, supra, 100 N.J. at 643.
However, the reasons stated by the trial judge, although applicable to the robberies and one of the witness-tampering counts, do not so clearly apply to the consecutive counts on the two remaining witness-tampering counts, nor did the judge focus his explanation of the consecutive sentences on those counts. The record, such as the letters between Orr and his sister, reflects that Orr's efforts to tamper with the three witnesses were part of a single plan, rather than a series of independent crimes as were the robberies. The judge did not explain why the three witness tampering counts were "predominately independent of each other," especially considering the fact that they were scheduled to testify at the same trial. In addition, unlike Mandalaywala, the remaining two witnesses were not reached by Prevost and, as a result, never directly threatened.
Nevertheless, as the Supreme Court observed in State v. Mendez, 175 N.J. 201, 211 (2002), "[t]he mere attempt at witness tampering . . . has an immediate and significant capacity to undermine the integrity of the criminal justice system."
In Miller, a case in which the sentencing judge articulated no Yarbough factors, we sought to "discern" the judge's reasons from the record and affirmed on that basis. Miller, supra, 205 N.J. at 129. The Supreme Court disapproved of the practice of trying to "discern" unarticulated reasons from the record except in rare cases and remanded for resentencing so that the judge could articulate his reasons directly. Ibid.
Here, we have determined that the reasons articulated by the judge find support in the record as to the consecutive sentences for the robbery counts and the witness-tampering count involving Mandalaywala, but the reasons for the two additional consecutive sentences on the remaining witness-tampering counts are not sufficiently articulated. Consequently, we vacate the second and third consecutive sentences for witness tampering and remand to the trial judge for resentencing on those counts. The remand will give the judge the opportunity to focus his consideration on the Yarbough factors, as well as the overall fairness of the sentence as required by Ghertler, in deciding whether those two counts should be concurrent or consecutive. And, in doing so, he should focus on the crimes rather than the criminal, as required by Friedman.
At the end of his explanation for the seven consecutive sentences, the judge stated that "[i]t would be hard to imagine a more deserving recipient of consecutive sentencing than Aaron Orr whose marauding depredations rattled our quiet streets and neighborhoods."
Unlike our dissenting colleague, we do not consider ourselves to be engaging in the type of "second-guessing" against which the Court warned in Bieniek, supra, 200 N.J. at 612. Instead, we view it to be our duty as an appellate court, when a sentencing judge imposed seven consecutive sentences with an aggregate sentence of life plus forty-five years, to ensure that the requirements of Yarbough, Ghertler, and Friedman have been followed and the judge's reasons have been articulated sufficiently to permit judicial review within the appropriate parameters.
Affirmed in part, vacated in part, and remanded in part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
NUGENT, J.A.D., concurring in part and dissenting in part.
I join the majority's opinion with the sole exception of the remand to have the sentencing judge consider whether defendant should have been sentenced concurrently, rather than consecutively, on two witness tampering counts. In my view, the judge adequately considered that issue when he sentenced defendant.
Following a trial in which a jury found defendant guilty of five counts of robbery, three counts of witness tampering, and one count of conspiracy, the judge who presided over the trial sentenced defendant to consecutive custodial terms on each robbery and witness tampering count, for an aggregate sentence of life plus forty-five years. My disagreement with the majority is not about whether we agree or disagree with the sentence, or whether the judge was authorized to impose a string of consecutive sentences. The Legislature has vested sentencing judges with the discretion to impose sentences concurrently or consecutively, with "no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a). Rather, unlike the majority, I find that the sentencing judge properly evaluated the Yarbough factors before determining that defendant's custodial term on the witness tampering counts should run consecutively.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
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The majority concludes the reasons the judge gave for imposing consecutive custodial terms on the robbery counts and witness tampering counts "do not so clearly apply to the consecutive counts on the two remaining witness-tampering counts," and that the judge did not "focus his explanation of the consecutive sentences on those counts." Ante at __ (slip. op. at 51). The majority points out that defendant's efforts to tamper with three witnesses were part of a single plan rather than a series of independent crimes, the witnesses were scheduled to testify at the same trial, and defendant's co-conspirator did not actually reach two of the witnesses. Ante at _ (slip. op. at 52). For those reasons, the majority has remanded this matter to "give the judge the opportunity to focus his consideration on the Yarbough factors, as well as the overall fairness of the sentence as required by [State v. Ghertler, 114 N.J. 383, 391 ( 1989)], in deciding whether those two counts should be concurrent or consecutive." Ante at __ (slip. op. at 52). The majority also explains that the sentencing judge "should focus on the crimes rather than the criminal, as required by [State v. Friedman, 209 N.J. 102, 122 (2012)]." Ante at _ (slip. op. at 52).
The sentencing judge separately stated his reasons for imposing consecutive sentences on each count. In doing so, he analyzed the Yarbough factors as to all seven counts. With respect to the Yarbough factors that supported consecutive sentences on the witness tampering charges, the judge considered "there can be no free crimes in a system for which the punishment shall fit the crime"; the crimes involved "separate acts of violence or threat[s] of violence"; and each crime had a separate victim. Ante at _ (slip. op. at 50); see Yarbough, supra, 100 N.J. at 643-44.
Defendant's efforts to tamper with three witnesses could be viewed, as the majority has viewed them, as a single criminal plan. But that single criminal plan "involved multiple victims," id. at 644, a fact the sentencing judge considered. And though the sentencing judge did not state, explicitly, that the conspiracy involved a single plan, that omission does not, in my view, require a remand when the sentencing judge clearly articulated other Yarbough factors that supported a consecutive sentence. As the Supreme Court has stressed,
the Yarbough guidelines are just that — guidelines. They were intended to promoteSee also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) ("While we agree with defendant that the offenses were connected by a "unity of specific purpose," that is, that the kidnapping was committed for the purpose of committing the assault and therefore the crimes were somewhat interdependent of one another, and were committed within a short period of time of one another, that does not necessarily mean that defendant was entitled to concurrent sentences."), certif. denied, 165 N.J. 492 (2000).
uniformity in sentencing while retaining a fair degree of discretion in the sentencing courts. As such, the five 'facts relating to the crimes' contained in Yarbough's third guideline should be applied qualitatively, not quantitatively. It follows that a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences.
[State v. Carey, 168 N.J. 413, 427-28 (2001) (citation omitted).]
Nor do I see the need to have the trial judge reconsider his decision in the context of the overall fairness of the sentence itself. The judge has already performed that task. Undoubtedly, the sentence is harsh. One can certainly question what purpose is served by adding more consecutive custodial terms to a sentence that already includes a term of life without parole plus consecutive custodial terms for other crimes. But those considerations have been vested in the discretion of sentencing judges, subject to the requirements that they properly evaluate factors such as those enumerated in Yarbough.
The Supreme Court has explained that a sentencing judge's discretion should be immune from second-guessing when the sentencing judge has adhered to the principles set forth in the Code of Criminal Justice. Ante at ___ (slip. op. at 47-48) (quoting State v. Bieniek, 200 N.J. 601, 612 (2010)). To require the judge in this case to consider giving weight to some Yarbough factors he did not emphasize when he sentenced defendant is, in my view, a form of second-guessing and an unnecessary intrusion upon the sentencing judge's discretion. For that reason, I respectfully dissent.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION