Opinion
DOCKET NO. A-1709-11T3
02-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO C. BAEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-05-0387.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Julio C. Baez guilty of possession of a handgun without a permit, a crime of the second degree. N.J.S.A. 2C:39-5b. On finding a "substantial likelihood that the defendant [was] involved in organized criminal activity," N.J.S.A. 2C:44-1a(5), the judge sentenced him to a six-year term of imprisonment subject to a minimum term of five years as mandated by N.J.S.A. 2C:39-5i.
Defendant appeals contending that the court erred in denying his motion to suppress statements he made to the police following his arrest and, in the alternative, claiming that his sentence is excessive. He frames the issues as follows:
I. SINCE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION PRIOR TO THE ADMINISTRATION OF MIRANDA WARNINGS, ANYTHING INCRIMINATING HE TOLD THE POLICE WHICH DERIVED THEREFROM SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (U.S. CONST. AMENDS. V, XIV).
II. DEFENDANT'S STATEMENT MUST BE SUPPRESSED BECAUSE THE POLICE VIOLATED HIS MIRANDA RIGHTS BY QUESTIONING HIM AFTER HE ASKED FOR AN ATTORNEY. (U.S. CONST. AMENDS. V, XIV).
III. DEFENDANT'S STATEMENT MUST BE SUPPRESSED BECAUSE IT WAS NOT VOLUNTARY. (U.S. CONST. AMENDS. V, XIV).
IV. DEFENDANT'S SENTENCE IS EXCESSIVE.
Because the judge did not resolve a factual question critical to an assessment of the voluntariness of defendant's confession under State v. O'Neill, 193 N.J. 148 (2007), and State v. Yohnnson, 204 N.J. 43 (2010), or consider voluntariness in light of those decisions, we remand for further proceedings.
Defendant does not challenge the adequacy of the evidence supporting his conviction or claim any error affecting that conviction other than the admission of his recorded statement. Accordingly, the evidence presented at trial is discussed here only as noted and the facts are drawn from the testimony and evidence presented at the suppression hearing.
Sometime between midnight and 1:00 a.m., Officer Spakowski was involved in searching a car that defendant was in. During the search, a handgun was found under the front passenger seat of the car where defendant was sitting. Defendant and other occupants of the car were arrested for possession of that handgun. Defendant was eighteen years old at the time, and had never been charged as an adult.
Spakowski transported defendant to police headquarters. On the way, Spakowski spoke to defendant to "make sure he wasn't feeling sick," and defendant asked him about the ramifications of his arrest — things such as how many years he was going to face, how much trouble he was in and what would go on from there. According to Spakowski, in that context he said, "What are you doing with that thing." The officer acknowledged that he asked the question and did not give defendant Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) warnings before or after he did. His acknowledgment was unambiguous:
[Defense Counsel:] So before you asked him about what he was doing with that thing, you had not given Mr. Baez his rights, even though the rest of the conversation had been about how much time he was going to do, he was asking you?
[Officer Spakowski:] Correct.
[Defense Counsel:] But you asked him a question about what he was doing with that thing before giving him his rights?
[Officer Spakowski:] A question that wasn't answered, yes.
[Defense Counsel:] But asked, asked by you.
[Officer Spakowski:] I asked that question, yes.
This colloquy is set forth in full because the State's brief on appeal includes this assertion: "Officer Spakowski said (he did not ask) '[w]hat are you doing with that thing.'" (Emphasis in brief).
By Spakowski's account, defendant gave a non-responsive answer. "[H]e just said, 'you just don't understand, you don't understand.'" Spakowski described the conversation that followed defendant's remark as follows: "And then after that conversation broke, we, right after that, like literally within a minute, we were en route to headquarters." There is no information in the record about the distance or time of travel between the site of the arrest and headquarters.
Detective Price was on call that night and came to headquarters. A sergeant told him that there had been an arrest involving a handgun, and Price spoke with Spakowski, "who informed [him that] there was somebody who would speak with the police" — that somebody being defendant.
Price went to defendant's cell and asked if he wanted to make a statement, and defendant said he would. Price left defendant in the holding cell while he went to start the DVD recording in the second-floor interview room. After doing that, he went back and brought defendant to the interview room. When Price and defendant entered the room at about 6:00 a.m., Price read defendant his rights using the Department's standard form. Next to each advisement, the detective wrote yes to indicate that defendant said he understood, and defendant subsequently wrote his initials next to each entry.
When advised that he had a right to speak with a lawyer at any time and have one with him before or during questioning, defendant said he understood. Defendant inquired, "So I can call a lawyer right now?" Price said, "If you want one I'm not gonna, once you request a lawyer I'm not gonna talk to you anymore." Defendant replied, "Oh no, no, no, I'm gonna do it."
Price asked, "What's that?" Defendant replied, "I need you more than I need a lawyer." Price said, "Okay, I'm gonna continue reading you your Miranda rights and you could make a decision afterwards alright." Price proceeded to advise defendant that a lawyer would be provided at no cost to defendant if he could not afford one, and defendant said he understood that right. After each additional advisement was read and addressed in that manner, defendant waived his rights and agreed to speak with the police.
Price opened the interrogation by asking defendant to tell him in his own words what happened. Defendant said the police stopped behind the car and that a lot of police officers surrounded it. Price asked whether the car had standard or automatic transmission, and defendant was uncertain. Price told him he was just trying to get a picture of what was going on.
Defendant's cryptic response was, "it's deeper than that it's not . . ." Without asking what defendant meant, Price said, "We're gonna get into that."
Defendant then said, "Can you please get him please." Price responded:
He's gonna come up as soon as he's done, I can't interrupt my bosses. I guess he's briefing on what happened tonight which is exactly what I'm trying to do with you. It's just, listen I'm straight up, man to man, I'm not gonna blow smoke up your ass, I'm here to find out what's going on.
According to Price, he understood defendant to be referring to "Mr. Diaz." Although there was no mention of Diaz during the interview and none in testimony given at the suppression hearing, at trial defendant testified that Arnold Diaz handed him the gun. A later statement made by defendant, suggests he was referring to Spakowski.
Defendant went on to tell Price that he did not know "what to do exactly." Defendant said he had just learned that he had two children, graduated from the military academy at Fort Dix to enroll in the National Guard, and had plans to go the firefighter academy, work at a warehouse in Burlington and get out of New Brunswick, because it was bad. He then said, "Oh man I don't know man."
Price told defendant to take his time. Defendant responded, "I (inaudible) Officer Spakowski I spoke to him, I told him everything but it's hard for me to tell you I just got done telling like I don't know I feel so (inaudible) I don't know. I don't know how I'm coming."
Price suggested defendant take a deep breath, and defendant asked Price if he was going to help him. Price told defendant he would do everything in his power but could not promise him. The detective advised, "there's only so much in the world that I can do." He added, "But I will tell you this, honesty is always the best remedy for these things." Defendant observed, "I know honesty's a lot comes with that."
Price then advised defendant that he worked with gangs, and asked defendant if he was "running with anybody." Defendant responded, "Yeah." When Price asked defendant who he "roll[ed] with," defendant told him it was with the "Blood." It was after a discussion about defendant's being in the gang and defendant's informing Price that he told Spakowski everything, that defendant told Price the gun was under the seat of the car where he was sitting and that he had put it there.
The interview lasted for less than an hour, and defendant did not testify at the suppression hearing.
The trial judge set forth her findings and reasons for concluding that defendant's recorded statement, with redactions, could be admitted at trial. In doing so, the judge addressed the exchange that defendant and Price had following defendant's question about whether he could call a lawyer right then. The judge found: "It is clear to this [c]ourt that the suspect or the defendant at the time was apparently confirming that he had a right to counsel, not invo[king] that right by the conversation that occurred back and forth."
The judge further found that defendant was eighteen years old, had some education because he had completed training at the military academy, had been offered and declined something to drink, was not promised anything and was informed of his rights and acknowledged his understanding. Noting that nothing she saw or heard in reviewing the recorded interview indicated that defendant did not knowingly, voluntarily and intelligently waive his rights, the judge determined that the State had met its burden of proving a valid waiver beyond a reasonable doubt.
Without question, the judge's "factual findings must be sustained as long as they are supported by sufficient, credible evidence in the record." Yohnnson, supra, 204 N.J. at 62. On that basis, we reject defendant's claim that the judge erred in concluding that he did not invoke his right to counsel and affirm that aspect of the judge's determination substantially for the reasons she stated.
Despite the limited scope of review, we cannot defer where the judge has not addressed the pertinent facts or considered the legal principles implicated. That is what occurred here, and the omissions preclude us from resolving the issues raised in Points II and III of defendant's brief without a remand.
In arguing for suppression, defense counsel urged the judge to consider Spakowski's pre-interview questioning of defendant in the police car. Miranda warnings were required before interrogation in this circumstance, Berkermer v. McCarty, 468 U.S. 420, 434-35, 104 S. Ct. 3138, 3147, 82 L. Ed. 2d 317, 331 (1984); see, e.g., State v. Elkwisni, 384 N.J. Super. 351, 361, 366-67 (App. Div.), certif. denied, 187 N.J. 492 (2006), and the colloquy set forth above establishes that, before giving defendant the advisements required by Miranda, Spakowski asked defendant what he was doing with the gun. "[W]ords or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response," amounts to interrogation. Rhode Island v. Innis, 446 U.S. 291, 303, 100 S. Ct. 1682, 1691, 64 L. Ed. 2d 297, 309 (1980); see also State v. Stott, 171 N.J. 343, 365 (2002) (referencing the Innis standard).
Relying upon Spakowski's admissions, defense counsel stressed that while speaking to Price in the recorded interview, defendant told Price that he had already told Spakowski "everything." That statement, recorded long before the suppression hearing, is in direct conflict with Spakowski's testimony suggesting that defendant said nothing incriminating.
Nevertheless, in concluding that defendant's waiver of his rights was knowing, intelligent and voluntary, the judge did not make any findings at all on what transpired en route to police headquarters or consider its impact on the voluntariness of defendant's subsequent waiver of his right to remain silent.
Custodial interrogation without Miranda warnings is pertinent not only to the admissibility of statements a defendant made at that time but also to statements a defendant makes after Miranda warnings have been given. The concern that underlies the rule requiring consideration of the impact of pre-warning responses elicited by interrogation "is the risk that a defendant will confess, and will then confess again in spite of being warned about his rights, because he will not hear or heed the warnings, believing that he has already crossed that bridge." Yohnnson, supra, 204 N.J. at 60.
For that reason, in O'Neill, the Court held "that when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination." 193 N.J. at 180-81.
Relying on Yohnnson, the State argues that O'Neill has no relevance in this case because defendant did not say anything incriminating to Spakowski. In Yohnnson, the Court concluded that O'Neill did not apply for several reasons: 1) the defendant had been warned but the warnings were imperfect, not absent; 2) the defendant said nothing incriminating during that interview about the crimes being investigated and, for that reason, there was no reason for concern that the defendant's decision to waive his rights in a subsequent interview was based on his belief that he had nothing to loose because he would be merely repeating what he had already said; and 3) the defendant was actually aware of some of his rights because he mentioned his right to counsel during the first interview. 204 N.J. at 61-62.
In this case, the first and last of these distinguishing facts are not present. It is undisputed that Spakowski did not give defendant any warnings and there is no evidence that defendant mentioned any pertinent right during his conversation with Spakowski. Moreover, because the judge did not make any finding on Spakowski's credibility, and indeed did not refer to his testimony at all, we have no basis for determining that defendant said nothing incriminating. To the contrary, there is conflicting evidence. We refer to the fact that during the video and audio recorded interview session immediately following defendant's transport to headquarters and before hearing Spakowski's version of their conversation, defendant told Price that he had told Spakowski "everything."
In the absence of adequate findings on this critical factual question, we remand for a determination on that issue and reconsideration of the record of the suppression hearing in light of O'Neill, Yohnnson and this opinion. Before addressing these questions, the judge may entertain such written and oral arguments of counsel as she deems appropriate. The judge should complete the decision on remand within ninety days of this opinion.
If the judge concludes that suppression is warranted, defendant's conviction must be vacated and defendant given a new trial. Jurisdiction is retained by this court for the limited purpose of allowing defendant to seek review of a decision holding that his confession was properly admitted. In that event, defendant may obtain review by giving notice and a copy of the judge's oral or written opinion to the clerk of this court and serving the State. Upon receipt of that notice, the clerk will issue a schedule for expedited briefing.
We have considered the arguments defendant has offered to establish that his sentence is excessive and determined that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed in part and remanded for further proceedings in the conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION