DOCKET NO. A-1038-14T1
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3846. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Majid Blount appeals from a March 9, 2009 judgment of conviction, pursuant to a negotiated plea agreement, for charges of conspiracy to commit armed robbery, armed robbery, aggravated manslaughter, and unlawful possession of a handgun. He pled guilty to these charges relating to the robbery and shooting of Kyree Gilchrist in April 2007. Defendant argues the trial judge erred in declining to suppress statements he made during interrogation, that the judgment of conviction must be amended, and alleges his sentence is excessive, unduly punitive, and not in accord with our sentencing guidelines. For the following reasons, we affirm the convictions and sentence, and remand for the amendment of the judgment of conviction to include mitigating factor twelve.
On April 27, 2007, defendant was arrested by Irvington Police Department (IPD) Detectives Wallace and Ramos in relation to the robbery and homicide of Kyree Gilchrist in Irvington. Defendant was handcuffed, taken to IPD Headquarters, and placed in an interview room.
During the first interrogation, defendant repeatedly denied any involvement in the crime. He alleged he was a member of the Crips. Defendant acknowledged that he knew about the shooting and that the alleged assailant looked like him, but maintained that he was not involved. However, in the second interrogation, defendant admitted to being a member of the Bloods and having "words" with decedent (a/k/a K.O.), who was a Crip, on the day of his murder.
Defendant alleged that when K.O. walked past, he said, "you all — you all slobs ain't going to live around here for long." Shortly after this, defendant and his cousin decided to rob the Crips' drug house nearby. He explained that as they were robbing the house, decedent tried to push past him while going down the stairs and "[t]he gun went off and then he was like, aah. And then after that, I just remember what he said, I mean, slobs can't — ain't going to be living right for long. So, then I just finished shooting him."
"Slobs" is a common pejorative used by Crips to refer to Bloods.
On November 30, 2007, an Essex County grand jury returned Indictment No. 07-11-3846, charging defendant with second-degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (counts two, three, four, and five); first-degree felony murder, in violation of N.J.S.A. 2C:11-3a(3) (count six); first-degree murder, in violation of N.J.S.A. 2C:11-3a(1) (count seven); second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (count eight); and second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count nine).
Co-defendant Clarence Johnson was also charged in the indictment on all counts except count seven. Johnson is not a party to this appeal.
A Miranda hearing on the admissibility of defendant's statements during his interrogations was held before Judge Michael R. Casale over three days. The videotapes of the interrogations were played by the State at the hearings. The first video showed that defendant was thoroughly informed of his Miranda rights, both verbally and in writing, before the interrogation began.
The State presented Detective Wallace who gave his qualifications and information about the handling of defendant before the interrogation began. The State questioned Wallace about what happened between the first interrogation and the second. Wallace indicated that he and Detective Roberts brought defendant back to the detective bureau to finish processing him. Wallace indicated he did not ask defendant any further questions, threaten him, or make him any promises. Further, defendant did not ask for an attorney.
Wallace indicated that Detective Lieutenant Edgar of the IPD, who was not in the interview room, was the only person who spoke to defendant in between the two interrogations, saying something along the lines of, "is that all you have to offer?" Wallace explained shortly after this, defendant indicated he wanted to speak to him again, but there was a delay because the DVD from the first interrogation was being finalized and they had to wait to get another set up. Defendant did not indicate to Wallace what he was going to tell him and Wallace had no expectations.
The videotape of the second interrogation again began with the detectives informing defendant of his rights. After the second interrogation video was done being played, the State continued questioning Wallace. Wallace indicated that after the second interrogation, defendant was processed and prepared for the cell block.
During cross-examination, Wallace indicated that defendant was arrested around 5:20 p.m. After arriving at the station about five minutes later, Wallace did not have any communications with defendant until the first interrogation began around 6:00 p.m. The first interrogation lasted about forty-five minutes.
During the first interrogation, Wallace said to defendant, "I'm quite surprised — I mean, I'm shocked which thankfully, you're not dead. Thankfully, we got you before one of these gang members retaliated against you. Because they know who you are." During cross-examination, Wallace admitted to making that, and other similar statements concerning gang retaliation, despite the fact he did not have any information or tips that someone was "interested in killing [defendant]."
During the first interrogation, Wallace said to defendant:
And when this goes to trial, we're going to have no doubt . . . that Majid Blount is going to go to jail for the rest of his life for murder. Felony murder. . . . Four counts of robbery with the felony murder. There is the death penalty in the State of New Jersey. Have they ever killed anybody? As far as I ever know, I don't think they ever have. But you will sit . . . down there for the rest of your life.
During cross-examination, Wallace acknowledged saying this, however, when asked if he was aware at that time that there was not a death penalty in New Jersey, the question was objected to by the State and the judge sustained the objection. Trying to get defendant to talk, Wallace said, "[w]e have to know about it now. Because right now, you've got life charges. If this is your opportunity to knock it down — and we can't guarantee anything. But we need to know that you didn't go in there to do that. And I don't believe you did." Again, Wallace admitted saying something along the lines of "by giving information," "there is an opportunity for you."
During cross-examination, Wallace indicated it was about twenty minutes between the first and second interrogations. Wallace was not aware whether Detective Lieutenant Edgar made any sort of threats or promises in return for a statement.
The Miranda hearing concluded with both attorneys giving their final arguments to supplement their written submissions to the court. The motion judge issued his oral decision on the voluntariness of the defendant's statements. He found the first statement was not inculpatory. Before the second statement, defendant was again given his rights. He agreed he was not coerced, and there were no threats or promises. He then gave an extremely detailed, inculpatory statement.
The motion judge found that "[t]he State went beyond the requirements with regard to repeated interrogation and gave a second Miranda warning which was signed and reviewed by defendant even though they really didn't have to." The judge pointed out "[p]olice psychological techniques are not coercive and improper merely because they cause a change of mind and result in a suspect's statement."
In evaluating the totality of the circumstances, the judge found "this is a defendant who although young, knows the system. He's been in custody as a juvenile. He's made statements that he's part of gangs. This to me is not a defendant that could be bullied. I saw the tapes." Further, "the length of the detention was not substantial here." The judge also observed that he "didn't see any physical punishment or mental exhaustion." The judge recognized:
Yes, the officer here, the detective here made some misstatements, that's kind of known as puffing. And I think that the detective may have overplayed some of the evidence against the defendant . . . but as indicated I didn't see anything overbearing or overreaching by what the officer said that had any overriding effect upon this defendant.
The judge found it significant that, "[h]e doesn't mention anything about this in there that he was coerced. He gave a statement. Again didn't mention anything in there that he was coerced." Moreover, "I looked at that statement. I looked at the defendant. To me there was nothing which showed that second statement was caused by overcoming of his will." The judge found it was purely speculation that something happened between the first and second interrogations.
He concluded that the State proved, beyond a reasonable doubt, that the Miranda requirements were met and that defendant knowingly, intelligently waived his rights before each of his statements. Further, the State proved that those statements were voluntarily made, based on the totality of the circumstances. Therefore, defendant's statements were ruled admissible.
After an uncontested motion concerning obtaining DNA exemplars was heard, defendant entered a negotiated guilty plea before a second judge (the trial judge) on January 27, 2009. Defendant pled guilty to counts one, two, and eight as charged, and to count seven, amended to first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a(1). He also agreed to provide a truthful statement inculpating his co-defendant. In return, the State recommended twenty-two years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissal of all remaining counts. Defendant preserved his right to challenge on appeal the motion judge's decision to not suppress his statements. A plea hearing was conducted before the trial judge and defendant provided a factual basis for the offenses to which he was pleading guilty, which the court accepted.
On March 9, 2009, the trial judge sentenced defendant in accordance with the plea agreement to a term of twenty-two years' imprisonment, subject to NERA. The court imposed the requisite fines and penalties. This appeal ensued.
On appeal, defendant presents the following issues for our consideration:
MR. BLOUNT'S VIDEOTAPED STATEMENT WAS THE PRODUCT OF PSYCHOLOGICALLY COERCIVE INTERROGATION.
THE JUDGMENT OF CONVICTION MUST BE AMENDED TO ACCURATELY REFLECT THE SUBSTANCE OF MITIGATING FACTOR 12 AS FOUND BY THE SENTENCING COURT.
MR. BLOUNT'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND IS NOT IN ACCORD WITH THE SENTENCING GUIDELINES FOR THE STATE OF NEW JERSEY.
Defendant contends that the trial judge erred by declining to suppress his statements made during interrogation because they were a product of "coercion and psychological battering." He asserts that the manipulation employed by the detectives, "posturing themselves as sympathetic listeners with [an] omnipresent threat of death by either gang members on the street or the State on death row," voided the free and voluntary nature of his waiver of rights, thus requiring reversal of his convictions.
When reviewing the admission of defendant's custodial interrogation, we "must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record" where, as here, that court has made its findings based on the testimonial and documentary evidence presented at an evidentiary hearing. State v. Hubbard, 222 N.J. 249, 262 (2015). Additionally, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Our review of the motion judge's legal conclusions, however, is de novo. State v. Vargas, 213 N.J. 301, 327 (2013); State v. Gandhi, 201 N.J. 161, 176 (2010).
"[A] confession or incriminating statement obtained during a custodial interrogation may not be admitted in evidence unless a defendant has been advised of his or her constitutional rights." Hubbard, supra, 222 N.J. at 265. Those rights, however, may be waived so long as the waiver is "voluntary, knowing and intelligent." State v. Hreha, 217 N.J. 368, 382 (2014). To determine voluntariness, "courts consider whether the statement was the product of an essentially free and unconstrained choice by its maker, in which case the statement may be used against the defendant, or whether the defendant's will has been overborne and his capacity for self-determination critically impaired." State v. Cabrera, 387 N.J. Super. 81, 99 (App. Div. 2006) (citations omitted).
To determine whether a statement was made voluntarily, a court must assess the totality of the circumstances surrounding the giving of the statement. State v. Nyhammer, 197 N.J. 383, 409, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Relevant factors include the "defendant's age, education, intelligence, advice concerning his [or her] constitutional rights, length of detention, and the nature of the questioning — specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion." Id. at 402 (citation omitted). Another critical factor is whether the conduct of the police was overreaching to the point of being fundamentally unfair. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003).
A defendant's statement is not involuntary just because the police were not honest with him during the interrogation. See, e.g., State v. Galloway, 133 N.J. 631, 653 (1993) (holding confession admissible where police engaged in a "deliberate act of deception to secure" it). Unlike physical coercion, "use of psychologically-oriented technique during questioning is not inherently coercive." Cabrera, supra, 387 N.J. Super. at 103 (quoting Galloway, supra, 133 N.J. at 654-55). Some deception or trickery is permissible, so long as the method used was not "calculated to produce an untruthful confession or was offensive to due process." State v. Manning, 165 N.J. Super. 19, 30-31 (App. Div. 1978), rev'd o.g., 82 N.J. 417 (1980).
Here, the motion judge properly concluded, based on an evaluation of the totality of the circumstances, that defendant gave both statements voluntarily. Defendant, before both statements, was given his Miranda rights and agreed he was not coerced, and that there were no threats or promises made. The State went beyond what was necessary and gave a second Miranda warning prior to the second statement, which was reviewed and signed by defendant. Despite defendant's young age, the judge noted his knowledge of the system from his juvenile history. He also felt, "[t]his to me is not a defendant that could be bullied."
Further, the length of the detention was not substantial and there were no signs of physical punishment or mental exhaustion. Defendant never mentions anything about being coerced. There was no evidence which showed that second statement was caused by any overcoming of defendant's will. That the detectives used "puffery" and "overplayed some of the evidence" does not constitute "very substantial psychological pressure" enough to render defendant's statements involuntary. Cabrera, supra, 387 N.J. Super. at 103. In viewing the totality of the circumstances, the motion judge correctly concluded that there is no evidence to show that any statements by the police were sufficient to have overborne defendant's free will, and thus be considered involuntary.
Next, defendant contends that the sentencing court appropriately found mitigating factor twelve, but the judgment of conviction incorrectly reflects an inappropriate aggravating factor, as conceded by the State.
The court appropriately found mitigating factor twelve, which considers, "[t]he willingness of the defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1b(12). However, in the judgment of conviction, under mitigating factors, lists "[t]he defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled." N.J.S.A. 2C:44-1a(12). Thus, we remand to the trial court to amend the judgment of conviction to correctly reflect mitigating factor twelve, N.J.S.A. 2C:44-1b(12), as found by the sentencing court.
Lastly, defendant challenges his sentence, arguing it is excessive, unduly punitive, and not in accord with our sentencing guidelines. Specifically, he contends that a remand for resentencing is required because the court failed to weigh the aggravating and mitigating factors, and the sentence was excessive as it was defendant's first indictable conviction.
In reviewing a sentencing decision, we must "decide whether there is a clear showing of abuse of discretion." State v. Bolvito, 217 N.J. 221, 228 (2014) (citation and internal quotation marks omitted); see also State v. Blackmon, 202 N.J. 283, 297 (2010) ("Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard."). A sentence must be affirmed unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Bolvito, supra, 217 N.J. at 228 (alteration in original) (citation and internal quotation marks omitted). However, where a sentence is imposed pursuant to a negotiated plea bargain it is presumed reasonable. State v. Pillot, 115 N.J. 558, 566 (1989).
"A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (internal citation omitted). We should thus "defer to the presumed reasonableness of a bargained sentence." State v. Spinks, 66 N.J. 568, 573 (1975).
Here, the trial judge found that defendant was twenty-one years old at sentencing with no prior convictions, but did have an open municipal bench warrant, an extensive juvenile record, and that he violated probation multiple times. Based on this, the judge found that defendant does not know how to "conform . . . to civilized society." Further, defendant was unemployed, living with his mother, single with no children, a regular drug user, and a high school dropout.
Only mitigating factor twelve, his cooperation with police, was found with respect to defendant. Meanwhile, aggravating factors three (risk to commit another offense), six (length and seriousness of criminal record), nine (deterrence), and eleven (anything less than imprisonment would be viewed as "the cost of doing business") were all found to apply here. The trial judge imposed the sentence recommended by the State pursuant to the plea agreement and dismissed the remaining counts, finding the aggravating factors outweighed the mitigating factor.
The trial judge properly merged count one with count two, imposing a seventeen-year term subject to NERA. On amended count seven, the court imposed a twenty-two-year term to run concurrent to that imposed on count two, again subject to NERA. On count eight, the court imposed a five-year term to run concurrent to that imposed on counts two and seven.
In light of the foregoing, the sentencing court did not clearly abuse its discretion. Bolvito, supra, 217 N.J. at 228. It properly based its finding of aggravating factors on competent credible evidence. Ibid. Lastly, a twenty-two-year aggregate sentence for aggravated manslaughter, robbery, and possession of a handgun does not "shock the judicial conscience." Ibid.
For the foregoing reasons, the convictions and sentence are affirmed and we remand to the Law Division for correction of the judgment of conviction to include mitigating factor twelve. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION