Opinion
DOCKET NO. A-0767-13T1
04-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DORELLE RASHAN WALLACE, a/k/a DORELLE WALLACE, DURELL RASHAN WALLACE, DOROLLE RASHAN WALLACE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 12-02-0255 and 12-02-0259. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Dorelle Wallace appeals from an April 16, 2013 judgment of conviction following his retraxit guilty plea to two counts, charged in separate indictments, of first-degree robbery, N.J.S.A. 2C:15-1(a)(1). Pursuant to a negotiated plea agreement, all remaining charges against defendant set forth in the twenty-three count indictment, No. 12-02-0255, and the five count indictment, No. 12-02-0259, were dismissed.
Prior to entering his guilty pleas, defendant moved to suppress his confession, which was denied. On the date scheduled for sentencing, he moved to withdraw his guilty pleas; that motion was also denied. Defendant was sentenced on the conviction under Indictment No. 12-02-0259 to twelve years incarceration, subject to an 85% period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on the conviction under Indictment No. 12-02-255, to a consecutive thirteen years, subject to NERA. Applicable fines and assessments were also imposed.
On appeal, defendant argues:
POINT I
THE TRIAL COURT SHOULD HAVE SUPPRESSED DEFENDANT'S INCULPATORY EXTRAJUDICIAL STATEMENTS, BECAUSE THE DETECTIVES DID NOT QUESTION DEFENDANT TO CLARIFY IF HE WAS INVOKING HIS RIGHT TO BE SILENT WHEN HE REPEATEDLY DECLARED THAT HE WOULD NOT ADMIT TO CONDUCT WHICH HE DID NOT DO AND REQUESTED THE ADMINISTERING OF A POLYGRAPH EXAMINATION, FAILED TO ISSUE FRESH MIRANDA WARNINGS AT THE COMMENCEMENT OF THE SECOND INTERROGATION SESSION, AND FAILED TO CLARIFY WHETHER DEFENDANT WISHED TO CONTINUE ANSWERING QUESTIONS WHEN HE REQUESTED THAT THE DETECTIVES STOP RECORDING THE
INTERROGATION AND THE DETECTIVES TOLD HIM THE RECORDING WAS REQUIRED.Following our review of the arguments advanced, in light of the record and applicable law, we affirm.
POINT II
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO AN EFFECTIVE OPPORTUNITY TO PRESENT HIS DEFENSE.
POINT III
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA.
POINT IV
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
I.
The charges arise from defendant's participation in two robberies. The first occurred on June 15, 2011. Defendant and two others robbed a Pennsauken jewelry store, while armed, and beat and detained employees. The three perpetrators fled the scene in an SUV. Police subsequently stopped the car occupied by Dwayne Tribett and Edward Bettis. Tribett was released when robbery victims failed to identify him as one of the perpetrators during a show-up. Bettis, however, was arrested because police discovered an outstanding warrant.
Following Bettis' arrest, police searched the vehicle and found a driver's license of one of the robbery victims. Bettis was confronted with this evidence and he agreed to discuss his role in the robbery, during which he identified Tribett and defendant as the other participants.
The second robbery occurred on July 18, 2011, when defendant and Tribett, armed with a handgun, entered a United Check Cashing branch in Stratford and ordered an employee to open a safe. When she was unsuccessful, the two fled in a silver Jeep Cherokee. Police gave chase. Defendant and Tribett exited the vehicle, fleeing in separate directions on foot. Tribett was shot and killed, but defendant was ultimately apprehended and taken into custody that same day.
Sergeant William Townsend and Investigator Gary McBride began a recorded interview of defendant at approximately 12:30 p.m. Prior to questioning, McBride advised defendant of his Miranda rights. Defendant acknowledged he understood these rights and initialed the Miranda form. Defendant was told he would be charged and was asked to be honest when answering questions because that might impact what charges the prosecutor presented. Defendant agreed to waive his rights and spoke to the investigators.
Initially, defendant maintained his innocence, explaining he was shopping with his girlfriend at the mall during the jewelry store robbery. As to the check cashing business robbery, defendant admitted he was in the area, where he saw Tribett sitting in his Jeep. Tribett told defendant he was hungry and had no money, so defendant went into the drug store to buy Tribett chips and a soda. These items were later found in the Jeep. Defendant stated when he exited the drug store, Tribett was no longer in the car and he looked for him in the check cashing business. It was then defendant learned Tribett intended to rob the check cashing business. Defendant told the investigators he immediately walked away to the area police later found him.
Despite Sergeant Townsend's insistence this story was not truthful, defendant steadfastly repeated his version of events and offered to submit to a lie detector test. The officers ignored defendant's polygraph requests and continued the interrogation, suggesting perhaps defendant was caught up in the matter because he feared Tribett. At one point Sergeant Townsend suggested he would call a polygraph operator and left the interview room for less than ten minutes. When Sergeant Townsend returned, he stated he doubted defendant's assertions of innocence. Defendant responded: "I'm not going to sit here and admit to something I really never knew nothing about." Sergeant Townsend again stated he would look into acquiring the polygraph machine, then he and Investigator McBride stopped the recording and left the interview room.
At approximately 1:39 p.m., defendant was placed in an interview room with the same investigators. Sergeant Townsend informed defendant he and Investigator McBride would be leaving and intended to inform him of the charges being filed. Sergeant Townsend asked if defendant had anything else he wanted to say to which he replied:
You know it's the crazy thing. I don't know how you knew, but you knew. And when I mean I say that is . . . about having pretty much (inaudible) people do this stuff. I don't know where . . . I don't know how you hit it but you hit it on the head.
Sergeant Townsend remarked he understood defendant was caught in something he would not "normally get himself wrapped up in" and questioned defendant about the jewelry store robbery. Without prompting or interruption by Sergeant Townsend or Inspector McBride, defendant began talking generally about his life and relationship with Tribett. He provided details of the jewelry store robbery followed by those relating to the check cashing business robbery. Defendant then admitted he was at the check cashing business, knew Tribett had a gun in his back pocket and drove the vehicle as the two fled. Sergeant Townsend suggested a video captured defendant and told him he needed to be honest about what happened. At that point, defendant asked to pause the recording. This colloquy followed:
[Sergeant Townsend]: I need you to be honest about everything man. Don't . . . sugar coat stuff [be]cause you think it's [going to] hurt you. I'm telling you right now man, this is the situation where the prosecutor figures things out.
[Defendant]: Let me say this . . . one, can we stop the tape for one second?
[Sergeant Townsend]: I can't do that man . . . and that's for your protection and for mine man.
[Defendant]: One second please.
[Sergeant Townsend]: I can't I'm not allowed. I can't I can't.
[Investigator McBride]: The law requires us to tape this.
Defendant confirmed Tribett was dead and began speaking about his involvement. He explained he learned Tribett wanted to kill him. Fearing for his life, he had contacted the Federal Bureau of Investigation and revealed Tribett's involvement in a Gloucester County bank robbery.
During the suppression hearing, Sergeant Townsend testified and defendant made a statement suggesting he was beaten during the break in the videotape. Finally, the judge reviewed the two videotapes capturing defendant's interrogation.
II.
A.
On appeal, starting with the suppression hearing, defendant maintains Judge Michele M. Fox erroneously found the custodial statement was voluntary, despite claims defendant requested to remain silent, which was ignored by police. First, defendant suggests the break in the interrogation required his Miranda rights be re-administered. Second, he maintains the request to turn off the tape equated to an invocation of his right to remain silent triggering the need to reissue Miranda warnings before continuation of the interrogation. We reject these arguments.
"[A] finding of compliance with Miranda and voluntariness turn[s] on factual and credibility determinations State v. Faucette, 439 N.J. Super. 241, 255 (App. Div.) (alterations in original) (quoting State v. W.B., 205 N.J. 588, 603 n.4 (2011)), certif. denied, 221 N.J. 492 (2015). This court will not "engage in an independent assessment of the evidence as if it were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will it make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Rather, in our review we determine whether there is "sufficient credible evidence in the record to sustain the trial judge's findings and conclusions." W.B., supra, 205 N.J. at 603 n.4. If so, our "task is complete and [we] should not disturb the result." State v. Johnson, 42 N.J. 146, 162 (1964). Our deference to the trial judge's finding is not applicable only "when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011) (emphasis added). "In that circumstance, . . . appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself." Id. at 565-66.
Also, when "necessary, this court will not 'hesitate to make new fact findings on the record in a situation where the findings are not exclusively factual but intertwined with legal conclusions drawn from the Miranda case and its progeny.'" Faucette, supra, 439 N.J. Super. at 256 (quoting State v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974), aff'd, 67 N.J. 80 (1975)). Finally, the trial judge's legal conclusions are reviewed de novo. State v. Shaw, 213 N.J. 398, 411 (2012).
Our "inquiry begins with whether the suspect invoked his or her right to remain silent." Diaz-Bridges, supra, 208 N.J. at 564. "If [an] individual indicates in any manner, at any time prior to or during questioning, that he [or she] wishes to remain silent, the interrogation must cease." State v. Hartley, 103 N.J. 252, 263 (1986) (quoting Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723).
"When assessing the validity of a defendant's waiver of his right to remain silent, a court considers the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Faucette, supra, 439 N.J. Super. at 257. The State bears the burden of proving "beyond a reasonable doubt that the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances." State v. Patton, 362 N.J. Super. 16, 42 (App. Div.) (quoting State v. Presha, 163 N.J. 304, 313 (2000)), certif. denied, 178 N.J. 35 (2003).
Judge Fox thoroughly reviewed the totality of evidence presented. State v. Nyhammer, 197 N.J. 383, 402, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Her fact-sensitive inquiry considered the statements cited by defendant, as well as their context in the interrogation, evaluating defendant's words and actions. Diaz-Bridges, supra, 208 N.J. at 565. She also considered and credited Sergeant Townsend's testimony and viewed the videotapes. Judge Fox found the evidence did not reasonably support defendant invoked his right to remain silent or that he sought a break in the interrogation. Id. at 569. We defer to these factual findings, which are "substantially influenced by his [or her] opportunity to hear and see the witnesses and [develop a] 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161). Further, we agree defendant's protests of innocence and requests to take a polygraph did not represent statements seeking to stop the interrogation or invoke his right to remain silent.
Similarly, we conclude the break in the interrogation, initiated by the investigators and not defendant, did not trigger the need to reissue Miranda warnings as mandated by Hartley, supra, 103 N.J. at 267. In Hartley, the Court underscored the need to reissue Miranda warnings after a suspect requests to remain silent, stating:
We . . . declare as indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect the furnishing of fresh Miranda warnings. Unless the police follow this "bright-line," inflexible, minimum requirement, a defendant's statement made in the above-stated circumstances cannot be admitted into evidence as part of the prosecution's case in-chief. See also State v. McCloskey, 90 N.J. 18, 30 n.3 (1982) ("[P]rosecution cannot use any statements made during [the defendant's] second interrogation, before
which new Miranda warnings were not given".).
[Ibid.]
However, "[n]ot every break in questioning compels renewed administration of the Miranda warnings." State v. Harvey, 151 N.J. 117, 222 (1997) (alteration in original) (quoting State v. Bey, 112 N.J. 123, 138-40 (1988)). Where a defendant has not invoked his or her right to remain silent, the State must demonstrate only that the defendant executed a knowing, intelligent, and voluntary waiver of his or her Miranda rights. Hartley, supra, 103 N.J. at 260-61.
Judge Fox found the brief stoppage in the custodial interview was not the result of defendant's assertion of his right to remain silent; rather, the investigators decided to take a break and check on the possible administration of a polygraph examination. She concluded this was "one continuous interview."
Having reviewed the record, including the video of defendant's custodial statements, we too determine the nature of the interruption in the interrogation was insignificant. We affirm the judge's finding defendant did not seek to end the interrogation nor did he, directly or indirectly, invoke his right to remain silent. Accordingly, Sergeant Townsend and Investigator McBride did not need to reissue Miranda rights when they returned to the interview room to continue their interrogation. They properly relied on defendant's prior voluntary waiver to discuss the matter with police.
Finally, defendant's request to turn off the videotape did not invoke his Fifth Amendment rights. In this regard, Judge Fox properly considered the totality of the circumstances and found credible Sergeant Townsend's explanation that defendant was neither confused about his rights nor desirous of ending the interview; rather, he wanted his comments not to be recorded. After being told the tape must continue to run, defendant continued to speak freely with little to no interruption from the interrogators.
The sufficient credible evidence in the record supports these findings. The conclusion defendant did not invoke his right to remain silent will not be disturbed. Accordingly, defendant's inculpatory custodial statement was properly found admissible.
B.
Defendant next argues he was "deprived . . . of his constitutional right to an effective opportunity to present his defense." Defendant notes he was permitted to address the court, during the Miranda hearing, and asserted he was "punched" and "beat up" when the tape was stopped. He contends counsel did not fully raise this issue and actually interjected he did not want defendant to testify, advising the issue was one for trial.
To support his constitutional deprivation argument, defendant cites Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986), which addresses a defendant's right to present a complete defense at trial, including "competent, reliable evidence bearing on the credibility of a confession." Id. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at 645. We find defendant's argument lacks merit. R. 2:11-3(e)(2).
Notably, defendant's claims strike at the credibility of his confession, which is a question for the jury. State v. Hampton, 61 N.J. 250, 272 (1972). Additionally, the strategic choice of deciding not to present defendant's testimony, which could be used against him, prior to trial and prior to the actual development of the issue, should not be second-guessed, particularly since once all evidence was known, defendant retained the right to file additional motions or testify at trial. State v. Savage, 120 N.J. 594, 631 (1990).
C.
Defendant entered his guilty pleas before Judge Gwendolyn Blue. Prior to sentencing, defendant moved to withdraw his plea, asserting he did not participate in the jewelry store robbery. Defendant acknowledged he testified he had entered the jewelry store while armed intending to steal; affirmed he had an opportunity to review the evidence amassed by the State; and was pleading guilty because he was guilty. However, at the motion hearing he maintained he was forced to make these statements, which were not true. On appeal, defendant argues Judge Blue abused her discretion in denying his motion. We are not persuaded.
When evaluating a motion to withdraw a defendant's guilty plea prior to sentencing, if the plea is supported by an adequate factual basis, but the defendant later asserts his innocence, a trial judge must consider: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009). When we review a denial of such a motion, we examine whether the trial judge's determination represents an abuse of discretion. State v. Tate, 220 N.J. 393, 404 (2015). We must defer to findings assessing a defendant's proffered reasons to withdraw the plea, the strength of the defendant's case, and any credibility determinations. Ibid.
During the initial plea hearing, defendant informed the judge he was entering a guilty plea because he was "backed into the corner," which he explained resulted because of dissatisfaction with counsel. Twice during the hearing, the judge rejected the proffer of a plea because she considered defendant's comments reflected coercion. Defendant insisted he wanted to plead guilty after reviewing the evidence against him. The judge probed this statement. Defendant confirmed, although he was not happy with counsel's advice, he personally reviewed the evidence and understood the State's case, which was why he was entering a plea. Defendant reserved the right to raise his Miranda challenges on appeal and provided a factual basis for his guilt.
Prior to sentencing, defendant again asserted substantially the same challenge, stating counsel did not file all motions he believed were appropriate. His contention was rejected by Judge Blue who found defendant not credible and concluded his assertions reflected a change of heart, specifically relying on recited portions of his plea testimony.
Judge Blue's findings to support her denial of the motion to withdraw his guilty plea are well supported by the record. She found defendant was fully advised of the consequences of waiving his right to appeal; noted although defendant raised concerns about counsel's performance, he separately reviewed all discovery and evaluated the strength of the evidence, which included a co-defendant's statements; and repeatedly assured her he was neither coerced or promised anything to enter the plea, but was pleading guilty because he was guilty. Thus, Judge Blue found defendant's claims of innocence not credible.
"[A] defendant's representations and the trial court's findings during a plea hearing create a 'formidable barrier' the defendant must overcome in any subsequent proceeding." Slater, supra, 198 N.J. at 156 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). To set aside a guilty plea, supported by a factual basis, "defendants must show more than a change of heart." Id. at 157. As observed by the Supreme Court "judges must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
We defer to these findings, made following Judge Blue's careful scrutiny of defendant's testimony and her review of the record. As the judge who considered and accepted defendant's plea, Judge Blue was in the best position to observe defendant's demeanor and consider his newly raised assertions of innocence.
To the extent defendant raises claims of ineffective assistance of counsel that may require review of evidence outside the hearing record, he is free to seek post-conviction relief.
D.
Defendant's final issue presented on appeal argues the consecutive sentences imposed were manifestly excessive. We disagree.
In our review, we will affirm a sentence unless: (1) the judge violated the sentencing guidelines; (2) competent, credible evidence in the record did not support the findings of aggravating and mitigating factors; or (3) the application of the law to the facts shocks the judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).
Recognizing "there is no presumption in favor of concurrent sentences," State v. Abdullah, 184 N.J. 497, 513 (2005), statutory sentencing guidelines permit a sentencing judge, in the exercise of his or her discretion, to impose either concurrent or consecutive sentences. N.J.S.A. 2C:44-5(a). Consecutive sentences are bounded by the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986):
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(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 are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
A sentencing judge must weigh these factors qualitatively not quantitatively. State v. Carey, 168 N.J. 413, 427-28 (2001). Further, consideration of a plea agreement may impact the decision of whether imposing consecutive sentences is appropriate and reasonable. State v. Balfour, 135 N.J. 30, 37-40 (1994). Here, the judge did not specifically delineate the applicable Yarbough factors. Nevertheless, the record permits us to affirm the imposed sentences because "the facts and circumstances leave little doubt as to the propriety of the sentence imposed" and we find no basis to conclude "the sentence is 'clearly mistaken.'" State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)), certif. denied, 177 N.J. 492 (2003).
Here, defendant was involved in two violent first-degree offenses that occurred at separate times (over one month apart), in separate municipalities, and involved distinctly different victims. State v. Molina, 168 N.J. 436, 442-43 (2001) (upholding consecutive sentences in a case including multiple victims even though the trial judge failed to provide reasons). The plea agreement, which included the State's proposal to dismiss numerous charges in the two indictments, required the sentences imposed on the convictions to be consecutive. Based on the plea agreement itself and defendant's testimony during the plea hearing, there was no doubt any sentences imposed were to be consecutive. State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) ("These were separate crimes committed on separate occasions and the plea agreement itself called for consecutive sentences.").
Also, contrary to defendant's assertion, the judge was very much aware of and explained to defendant during his plea hearing the real time consequences of the sentences imposed. See State v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.) (holding when imposing consecutive sentences, courts must consider the real-time consequences of the No Early Release Act), certif. denied, 182 N.J. 142 (2004). Defendant acknowledged he understood these aspects of the proposed agreement and wanted to plead guilty.
We conclude the judge fulfilled her duty to identify applicable aggravating and mitigating factors and balance those factors. State v. Kruse, 105 N.J. 354, 360 (1987). The judge applied aggravating factors three, "[t]he risk that the defendant will commit another offense"; six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (6), and (9). The judge then reviewed possible mitigating factors and found none. The length of the sentences was set within the first-degree range and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).