Opinion
DOCKET NO. A-2779-11T3
07-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMIL PARSON, Defendant-Appellant.
Joseph E Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-07-1361.
Joseph E Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress his videotaped statements to law enforcement authorities, defendant Jamil Parson pled guilty to eight counts of an indictment charging him with murder, attempted murder, unlawful possession of a weapon, conspiracy to commit witness tampering, and related offenses after he shot one victim, who lived, and executed another victim. The court sentenced him to an aggregate forty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant raises a single issue on this appeal:
POINT ONE
BECAUSE THE POLICE FAILED TO CLARIFY, IN RESPONSE TO DEFENDANT'S STATEMENT THAT HE DID NOT HAVE AN ATTORNEY, THAT QUESTIONING COULD CEASE WHILE DEFENDANT OBTAINED AN ATTORNEY AND THAT AN ATTORNEY COULD BE PROVIDED IF DEFENDANT COULD NOT AFFORD AN ATTORNEY, THE TRIAL COURT'S DECISION DENYING THE SUPPRESSION OF DEFENDANT'S SUBSEQUENT STATEMENT SHOULD BE REVERSED.
Having considered defendant's argument in view of the record and controlling law, and having concluded that defendant knowingly and voluntarily agreed to speak to the authorities without counsel, though fully aware of his right to counsel, we affirm.
I.
An Ocean County grand jury charged defendant in eight counts of a ten-count indictment with the following crimes: first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) or (b) and N.J.S.A. 2C:5-2 (count one); first-degree murder, N.J.S.A. 2C:11-3(a) or (b) (count two); first-degree attempted murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-1 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); first-degree attempted witness tampering, N.J.S.A. 2C:28-5(a) (count eight); and second-degree conspiracy to commit witness tampering, N.J.S.A. 2C:28-5(a) and N.J.S.A. 2C:5-2 (count nine).
After defendant was indicted, he unsuccessfully moved to suppress the statements he had made to authorities on the morning they arrested him. Thereafter, he entered a guilty plea to the eight counts in which he was named in the indictment. At sentencing, the court merged count one with two, count four with three, count six with five, and count eight with nine. The court sentenced defendant on count two to a forty-year custodial term subject to NERA; on count three to a twenty-year custodial term subject to NERA; on count five, to a ten-year custodial term with three years of parole ineligibility; and on count nine to a ten-year custodial term. The court ordered that the defendant serve the sentences concurrently, and imposed appropriate fines and assessments. Defendant appealed from the judgment of conviction the court entered after accepting defendant's plea and sentencing him.
II.
The State presented the testimony of Detective Jason Pederson of the Township of Lakewood Police Department and Detective Carlos Trujillo Tovar of the Ocean County Prosecutor's Office at the hearing on defendant's suppression motion. According to Detective Pederson, shortly after midnight on December 4, 2009, he was dispatched to Kimball Medical Center where he interviewed a victim who was suffering from two gunshot wounds. Acting on information the detective developed after responding to the hospital, police proceeded to the area of a Lakewood apartment complex where they found the second shooting victim, who was dead.
Detective Trujillo Tovar stated his full name when sworn at the suppression hearing, but introduced himself as "Detective Carlos Trujillo" when he interviewed defendant. Detective Pederson also referred to Detective Trujillo Tovar as Detective Trujillo. Accordingly, we will refer to the detective in this opinion as Detective Trujillo.
Detectives Pederson and Trujillo were assigned by their respective offices to investigate the case. They developed sufficient evidence during the twenty-five days following the shootings to obtain arrest warrants for several suspects, including defendant. The police arrested defendant shortly after midnight on December 30, 2009, and the arresting officers transported him to the Lakewood Police Department where he was placed in an interview room and interviewed by Detectives Pederson and Trujillo. No one questioned defendant before he was placed in the interview room at approximately one o'clock in the morning.
Detective Pederson had been a police officer for approximately six years as of the date he interviewed defendant. He testified that he detected no odor of drugs or alcohol "emanating from [defendant]," and that defendant did not appear to be under the influence of alcohol or drugs. The detectives did not threaten defendant, coerce him, or make any promises to him to induce him to give a statement.
Before interviewing defendant, the detectives advised him that he had been arrested and charged with murder and attempted murder. After reading the charges to defendant and giving him a copy of the complaint, they informed him of his Miranda rights. The entire procedure was "recorded both by audio and video."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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After defendant waived his Miranda rights, he gave a lengthy statement in which he admitted shooting the victims. He claimed he had blacked out, come to when shots were fired, and realized that he had shot the two victims.
Detective Pederson testified that during the lengthy interview, defendant never refused to answer any questions, never invoked his right to remain silent, and never said he no longer wished to speak with the detectives. Defendant never asked for an attorney.
The State also introduced through Pederson's testimony defendant's juvenile and adult criminal records to demonstrate defendant's familiarity with arrest and police interview procedures.
Detective Trujillo testified and corroborated Detective Pederson's testimony. According to Detective Trujillo, before questioning defendant the detectives informed him of his Miranda rights and read the Lakewood Township Miranda form. They also advised defendant of the charges against him. The interview lasted approximately two and one-half hours.
Following the interview, while defendant was being "processed," Detective Trujillo said to defendant, "don't worry about it, . . . I believe you're a good guy. You're a good person." Defendant responded, "I'm a f***ing monster."
In addition to the detectives' testimony, the State introduced into evidence four exhibits: the DVD recording of the interview, a transcript of the interview, the arrest warrant, and the Lakewood Police Waiver of Rights form.
The transcript and DVD of the custodial interrogation confirm that before questioning defendant, the detectives gave him a copy of the complaint after reading the charges: murder and attempted murder. Detective Pederson then read to defendant his Miranda rights. When Detective Pederson finished, Detective Trujillo asked defendant if he understood those rights. Defendant replied, "Somewhat. I'm listening."
Next, Detective Pederson began to read the waiver of rights section of the Lakewood Miranda form and defendant interrupted, saying: "You said I don't want a lawyer present during the interview?" When Detective Trujillo began to explain that Detective Pederson had first read the rights section, defendant responded, "Yeah he was reading . . . he was reading the waiver."
Defendant repeated that he understood his rights "[f]or the most part." When Detective Trujillo asked what he didn't understand about his rights, defendant responded, "The waiver part." Detective Trujillo replied, "Well before we get to that, he just read your rights. Did you understand your rights?" Defendant said, "Yeah I got it."
During the ensuing colloquy, defendant asked what would happen if he did not sign the waiver form. Detective Trujillo responded that he could still talk to them without an attorney present, and defendant suggested that the detectives would try to forge the waiver form. After Detective Pederson assured defendant they would not forge the form and Detective Trujillo said he would write on the form that defendant refused to sign it, Detective Trujillo repeated: "[i]f you refuse to sign but you wish to talk to us, you can talk to us . . . [w]ithout your attorney present. Did you understand that?" Defendant replied, "Yeah. I understand the waiver part too." Detective Trujillo said "[o]kay," and defendant repeated, "I understand both parts."
Detective Trujillo next asked defendant if he wished to talk about the charges without his attorney present. Defendant replied, "I mean truth I don't have an attorney at this present time so I can't say yeah or no."
Detective Trujillo then reread the Miranda rights, reminding defendant, "I said before we ask you any questions you must understand your rights." The detective read the rights one at a time, asking after each right whether defendant understood it:
[Detective Trujillo:] You have the right to remain silent.
[Defendant:] Uh-hmm.
[Detective Trujillo:] Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during this questioning. Did you understand that?
[Defendant:] Right.
[Detective Trujillo:] Okay. You have the right to the advice and presence of a lawyer even if you [cannot] afford to hire one. If you wish to have a lawyer and [cannot] pay for one, you may apply to the court and one will be appointed to you.
[Defendant:] Uh-hmm.
[Detective Trujillo:] If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you talk to a lawyer.
[Defendant:] Hmm.
[Detective Trujillo:] Did you understand your rights?
[Defendant:] Uh-hmm.
[Detective Trujillo:] What does that mean? Yes?
[Defendant:] Uh-hmm.
[Detective Trujillo:] Yes or no.
[Defendant:] I'm , I'm cold. That's why.
[Detective Trujillo:] But that does mean yes or no?
[Defendant:] Yeah, yes.
[Detective Trujillo:] Okay. Now did you wish to talk to us?
[Defendant:] It certainly look like I [inaudible], I'll be, y'all want to talk to me. Y'all just charging me with something without asking with no questions . . .
[Detective Trujillo:] You are charged with the murder of [] and the attempted murder of []. This is what that means.
[Defendant:] On what grounds though. Like I don't understand how is that . . .
[Detective Trujillo:] Well if you wish to talk to us in reference to this. You can.
[Defendant:] Yeah that's what I want to do.
[Detective Trujillo:] Did you want to talk to us right now? Without your attorney present?
[Defendant:] Yeah I want to know what, what, like how this all came about. That's what I'm trying to figure out.
[Detective Trujillo:] So you want to talk to us?
[Defendant:] Yeah and with this too like don't waive my rights. I'm not asking you to waive my rights.
[Detective Trujillo:] If you don't waive your rights, you'll gonna have, so you're requesting an attorney? Is that what you're?
[Defendant:] If I don't waive my rights, you're telling me I, I'm requesting an attorney?
[Detective Trujillo:] If you waive your rights you're talking to us without the presence . . .
[Defendant:] Okay . . .
[Detective Trujillo:] . . . of an attorney.
[Defendant:] . . . and if I don't.
[Detective Trujillo:] We're not gonna talk to you because you want the presence of the attorney. It's that simple. Cause you are saying you want an attorney present.
[Defendant:] I um . . .
[Detective Pederson:] Dude you're complicating it.
[Defendant:] No I'm just trying to make sure that if, I'm trying to figure out if I didn't sign it right? Am I waiving my rights or not?
[Detective Trujillo:] No.
[Defendant:] Okay. So on that ground, on that note alone is it possible that you can discuss this with me?
[Detective Trujillo:] I can discuss it with you . . .
[Defendant:] Okay I'm not gonna sign it.
[Detective Trujillo:] If you refuse to sign it . . .
[Defendant:] I'm not refusing though.
[Detective Trujillo:] Well you don't want to sign it though . . .
[Defendant:] So . . .
[Detective Trujillo:] . . . I mean.
[Defendant:] . . . So are you forcing me to sign that?
[Detective Trujillo:] No.
[Defendant:] The only way you will talk to me is if I sign this.
[Detective Trujillo:] No.
[Defendant:] That's what you're saying.
[Detective Pederson:] That's not true.
[Detective Trujillo:] I'll talk to you if you don't sign it.
[Defendant:] I'm trying to make sure. Alright. I don't want to sign it yet.
[Detective Trujillo:] Okay. Then I'm gonna put here that you, that you don't want to sign.
[Defendant:] See. Refuse. I never refused though. That's my thing.
[Detective Trujillo:] When you say no that means you refuse.
[Defendant:] I never said [inaudible] I'm not gonna sign it at this moment. I would like to talk about this though.
[Detective Trujillo:] Okay.
[Defendant:] This is more important as well as my rights is too. This is more important cause I'm being charged with a murder . . .
[Detective Trujillo:] Correct.
[Defendant:] . . . and attempted murder for which I don't even know why. That's what I'm trying to figure out. And I feels as though I have the right to know this. Right or wrong?
[Detective Trujillo:] Okay. No problem at all.
[Detective Pederson:] Understood.
Defendant neither testified nor called any witnesses. After the State presented its evidence, defense counsel did not argue that defendant had equivocated about waiving his right to an attorney. Rather, he made the following argument:
Frankly, what I saw was a young man so desperate for an opportunity to talk that he couldn't possibly make a knowing and voluntary intelligent waiver. There is never going to be a moment when he wasn't going to talk. According to the State's case, he talked to [fifteen] people before the cops ever got him.
What I think I saw on that tape was a person who does not lack intelligence but has no concept of when to be quiet, when to exercise his right, could not possibly have exercised his right because he wants so much to be heard. I'm not going to tell you that he's criminally insane, but I'm going tell you there's something wrong with that kid, he can't keep his mouth shut. There's no circumstance under which there was ever a moment when he was not going to talk. It wasn't, it wasn't a voluntary act, it was compulsive, something that had compelled him.
And my evidence for that is that the obvious joy he took in wrestling with Detective Trujillo Tovar for all that time.
I give the detective all the credit in the world. There's no way I would have lasted two and a half hours. I haven't lasted two and a half hours yet with Jamil Parson and I'm his lawyer. Those two were well matched, it was a wonderful fight, people pay good money for those kind of match ups. But was it knowing, intelligent and voluntary? No, Judge.
In an order and a written opinion dated August 23, 2011, the trial court denied defendant's suppression motion. The court determined that defendant had knowingly and voluntarily waived his Miranda rights, even though he had declined to sign a written waiver.
III.
Our analysis of defendant's argument is guided by fundamental principles of law that apply to custodial interrogation of suspects. Every person has a privilege against self-incrimination. U.S. Const. amend. V; N.J.R.E. 503. A person can, however, make a knowing and voluntary waiver of the privilege. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." State v. W.B., 205 N.J. 588, 605 (2011).
When the State intends to introduce a defendant's confession at trial, it "must prove beyond a reasonable doubt that ... [the] confession was voluntary and was not made because the defendant's will was overborne," State v. Knight, 183 N.J. 449, 462 (2005), "and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them." W.B., supra, 205 N.J. at 602 n.3.
When reviewing a trial court's denial of a defendant's motion to suppress a statement, we generally defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409 (citing State v. Elders, 192 N.J. 224, 243-44 (2007)), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); see also W.B., supra, 205 N.J. at 603 n.4 ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions."). When a defendant's statement is videotaped, however, and "the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court . . ., deference to the trial court's interpretation is not required." State v. Diaz-Bridges, 208 N.J. 544, 566 (2012).
In the case before us, defendant emphasizes that he did not sign a waiver form. He argues that because he "did not unequivocally waive his right to counsel and the police failed to properly respond to [his] statement that he did not have an attorney," the trial court erred by denying his motion to suppress his statements. Defendant cites this statement: "I mean truth I don't have an attorney at this present time so I can't say yeah or no." Defendant concedes, however, that "[e]ventually, after again declining to sign the waiver form, defendant agreed to talk to police, ultimately giving a statement implicating himself in the shootings."
During an interrogation, if a suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. Once the suspect has requested counsel, law enforcement officers must discontinue questioning "until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981); see also State v. Wessells, 209 N.J. 395, 403 (2012).
Under federal law, a "suspect must unambiguously request counsel. . . . [A] statement either is such an assertion of the right to counsel or it is not." Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994) (citation and internal quotation marks omitted). Thus, though "a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Ibid. (citation and internal quotation marks omitted).
Our Supreme Court has adopted a different analysis. Under its decisions, "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). That is because "[t]he right to counsel is so fundamental that statements by a defendant which could be construed as a request for counsel must be interpreted liberally in favor of the defendant." State v. Cardona, 268 N.J. Super. 38, 44-45 (App. Div. 1993) (citing State v. Wright, 97 N.J. 113 (1984)), certif. denied, 135 N.J. 300 (1994). Thus, the "Court [has] set the threshold at whether a suspect's statement 'arguably' amounted to an assertion of Miranda rights, and held that in those circumstances, the officer must clarify with the suspect in order to correctly interpret the statement." State v. Alston, 204 N.J. 614, 621-622 (2011).
Here, we find nothing in defendant's words or conduct to suggest that defendant asserted, equivocally or unequivocally, that he wanted an attorney. To the contrary, the DVD confirms his attorney's observations that there was "never going to be a moment when [defendant] wasn't going to talk," and that defendant derived "obvious joy . . . in wrestling with Detective Trujillo Tovar."
The record makes clear that defendant understood the detectives would not speak with him unless he waived his right to have an attorney present. They told him so repeatedly. Immediately after the detectives informed defendant that he had been arrested for murder and attempted murder and handed him a copy of the complaint, Detective Pederson read the Miranda warnings, including these:
You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during any questioning. You have this right to the advice and presence of a lawyer even if you [cannot] afford to hire one. If you wish to have a lawyer and [cannot] pay for one you may apply to the court and one will be appointed for you. If you wish to answer any questions now without a lawyer present
you have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you talk to a lawyer.
Although defendant said he understood those rights "[s]omewhat," he clarified that he did not understand "[t]he waiver part." When Detective Trujillo explained that defendant could talk to them without an attorney present even if he did not sign the waiver form, and asked if he understood, defendant replied, "Yeah. I understand the waiver part too. . . . I understand both parts." When the detective asked defendant explicitly if he wanted to talk without an attorney present, and defendant said that he could not answer yes or no because he did not have an attorney "at this present time," Detective Trujillo read defendant his rights yet again, pausing after each right concerning an attorney, including that the court would appoint an attorney if defendant could not afford one. Defendant acknowledged that he understood each right. Despite defendant's acknowledgement of his right to have an attorney present, he never invoked that right. Defendant did not request an attorney after acknowledging his right to have one present.
Defendant's failure to sign the waiver form is not dispositive. As we explained in State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), "Miranda does not require a written waiver." A defendant's refusal to sign a waiver is only one factor to be considered in determining whether a defendant waived his rights. Id. at 62-64.
The DVD of the custodial interrogation discloses that defendant indeed enjoyed engaging in a verbal wrestling match with the detectives. The recording also demonstrates that, though fully aware of his right to counsel, defendant never invoked it, equivocally or unequivocally.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION