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State v. Leonce

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 16, 2016
DOCKET NO. A-3711-13T2 (App. Div. Sep. 16, 2016)

Opinion

DOCKET NO. A-3711-13T2

09-16-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER LEONCE, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Haas. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-02-0440. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM

Tried by a jury, defendant Peter Leonce was convicted of the lesser-included offense of first-degree aggravated manslaughter of Muriah Huff, N.J.S.A. 2C:11-4(a) (count one); the lesser-included offense of third-degree criminal restraint (Huff), N.J.S.A. 2C:13-2; first-degree murder of Michael Hawkins, N.J.S.A. 2C:11-3(a)(1) or (2) (count four); first-degree felony murder (Hawkins), N.J.S.A. 2C:11-3(a)(3) (count five); first-degree kidnapping (Hawkins), N.J.S.A. 2C:13-1(b) (count six); first-degree conspiracy to murder and/or kidnap (Huff), N.J.S.A. 2C:5-2(a)(1), (2), and N.J.S.A. 2C:13-1(a)(1) or (2) or 13-1(b) (count seven); first-degree conspiracy to murder and/or kidnap (Hawkins), N.J.S.A. 2C:5-2(a)(1), (2), and N.J.S.A. 2C:13-1(a)(1) or (2) or 13-1(b) (count eight); third-degree hindering apprehension or prosecution of another by concealment or destruction of evidence, N.J.S.A. 2C:29-3(a)(3) (count twenty-one); and third-degree hindering one's own apprehension or prosecution by concealment or destruction of evidence, N.J.S.A. 2C:29-3(b)(1) (count twenty-two). Defendant was acquitted of first-degree felony murder (Huff), N.J.S.A. 2C:11-3(a)(3) (count two); third-degree possession of a bat for an unlawful purpose, N.J.S.A. 2C:39-4(b) (count thirteen); and fourth-degree unlawful possession of a bat, N.J.S.A. 2C:39-5(d) (count fourteen). At the close of the State's case, the judge dismissed charges of third-degree possession of a rope for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seventeen), and fourth-degree unlawful possession of a rope under circumstances not appropriate for its lawful use, N.J.S.A. 2C:39-5(d) (count eighteen).

Count one of the indictment charged defendant with first-degree murder.

Count two of the indictment charged defendant with first-degree kidnapping. The judgment of conviction mistakenly grades the offense as first-degree rather than a third-degree crime, and should be corrected on the remand.

On September 20, 2013, defendant was sentenced to thirty years without parole on the Hawkins murder, count four, to be followed by fifteen years of imprisonment on Huff's aggravated manslaughter, count one, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Five-year terms of imprisonment, concurrent to count one and each other, were imposed on counts three, twenty-one, and twenty-two. Count five was merged with count four. Defendant was sentenced to fifteen-year terms, concurrent to count one and to each other on counts six, seven, and eight. Thus the aggregate sentence was to a term of forty-five years of imprisonment. Defendant was also assessed appropriate fines and penalties. He now appeals. Save for the vacatur of the sentence on count seven, because it merges with count one, and of count eight, which merges with count four, we affirm the judgment of conviction.

The State's case consisted in the main of testimony from three of defendant's eight co-defendants. The testifying co-defendants had entered into negotiated agreements with the State, pled guilty to aggravated manslaughter, and received twenty-five-year sentences of imprisonment subject to NERA. Another co-defendant, Kuasheim Powell, the leader of the Leuders Park Piru Street Gang, entered a guilty plea to murder, and was sentenced to thirty years. We summarize the relevant testimony.

The indictment results from the brutal killing of Hawkins and Huff on February 22, 2010. Hawkins allegedly took money that had been left out as bait; defendant, among others, found a note in Hawkins' backpack connecting him to a rival gang, the Hoovers, affiliated with the Crips. Defendant and his co-defendants were members of the Piru Street Gang, affiliated with the Bloods. Huff was Hawkins' girlfriend.

The homicides occurred in a home in Camden occupied by Arnetta Welch and her children, Dennis, Destiny, Shantay, and Shatara, Welch's sisters Adrienne and Akia, and Adrienne's friend Nicole Frey. Dennis and Shatara belonged to the Piru Street gang. Other gang members, including defendant, often slept at the house. Powell, Lance Fulton, David Hardwick, Keenan Wideman, Clive Hinds, and Shaniqua and Darryl Pierre were frequent visitors. Darryl, Shaniqua, Shatara, Adrienne, and Frey testified during the State's case-in-chief.

Throughout we refer to parties by their first names to avoid any confusion that may arise from the use of similar last names.

The day before the killings, on February 21, 2010, Hawkins produced a bottle of tequila stolen from Wideman's home. Darryl testified that normally the theft would have resulted in a beating; however, the only action taken against Hawkins was that he was told to leave.

When Hawkins and his girlfriend Huff returned to the Welch home the following morning on February 22, they smoked marijuana in Dennis's bedroom with defendant, Dennis, Darryl, and Fulton. Darryl and defendant went into Shatara's room to watch television with her and Shantay. Shortly thereafter, Fulton and Dennis entered Shatara's room and reported that Hawkins had stolen some money that Fulton had intentionally left out. In retaliation, they decided to assault Hawkins.

Darryl also testified that when he, defendant, Fulton, and Dennis returned to Dennis's room and assaulted Hawkins, they found a paper in his backpack tying him to the leader of the Hoover Crips gang. They taped Hawkins' mouth closed, tied him up, and put him in the closet. Darryl called Powell, texted him a picture of Hawkins, and asked Powell to come to the house.

Powell arrived with Wideman, Hinds, and Hardwick. Darryl said he and defendant, who had been out on the sidewalk along with Shaniqua and Shatara, accompanied the four men to Dennis's room. There, after Powell read the note, Powell shot Hawkins six times in the chest and face. Because Hawkins was still moving, everyone started beating Hawkins again, except defendant and Darryl, who went outside.

Eventually Powell also came outside and asked defendant about Huff. Defendant responded that "she got to go[.]" Darryl, Powell, and defendant went back inside the home where Shatara, Shantay, and Akia were already beating Huff with their hands, feet, and a metal candle holder. Shatara, Hinds, and Wideman tried to strangle Huff with a cord while Hardwick stabbed her. She died when suffocated with a plastic bag. Darryl, Dennis, and defendant buried both bodies in the back yard.

Shaniqua, Powell's girlfriend, testified that Hawkins was Powell's friend, and she frequently saw him and Huff at the house. When Shaniqua awoke on February 22, defendant, Powell, and Darryl were there. Both Powell and Shaniqua briefly left; Shatara called and asked her to return.

Powell and Shaniqua arrived shortly thereafter with Wideman, Hinds, and Hardwick. She followed Powell, Wideman, Hinds, and Hardwick to Dennis's bedroom. Although Shaniqua had previously testified that Darryl and defendant were already there, at trial she said she did not remember seeing them in the room.

After Powell shot Hawkins, Shaniqua ran downstairs and Powell followed her. He pointed the gun at Huff's head, but it did not fire when he pulled the trigger. Powell hit Huff in the face with the gun and told Shaniqua to beat her. Shaniqua, Shatara, and Powell beat Huff with their fists and a chair. Shaniqua claimed she went upstairs to the bathroom, and denied seeing anyone strangle or stab the victim, or put a bag over her head. Shaniqua also testified that Powell was in charge of the gang and that Darryl and defendant listened to him.

Shatara, also known as Shatara Carter, was separately indicted for these crimes. She testified that when she awakened on February 22, defendant, Dennis, Darryl, and Fulton were in her bedroom discussing beating Hawkins because he had stolen liquor and money. Shatara took Huff downstairs and called Shaniqua to help keep her there. Shatara went upstairs after Shaniqua's arrival, and saw Hawkins wrapped in a sheet in the closet. Defendant, Dennis, Darryl, and Fulton were in the room. Defendant showed Shatara a piece of paper tying Hawkins to the Hoover Crips gang, after which they went outside.

When Powell arrived, Shatara went upstairs but defendant stayed outside. Shatara had also previously testified that defendant was in the room with Hawkins. After Powell shot Hawkins, she went downstairs with Shaniqua and Powell. Powell tried to shoot Huff, but the gun did not fire so he hit her in the face instead; defendant came in from outside when Huff screamed. At Powell's instruction, Shatara and Shaniqua punched Huff and broke a chair over her head.

Powell told Shatara to kill Huff because if they let her go she would identify them. Shatara unsuccessfully tried to strangle Huff with a cord and claimed that she put a plastic bag over Huff's head to suffocate her, although she had on an earlier occasion testified that defendant was the one who placed the bag over Huff's head. In her statement to police, she said that Hardwick and Darryl placed the bag over the victim's head. Shatara too said that defendant, Dennis, and Darryl buried Hawkins and Huff in the yard.

The jury was shown the March 7, 2010 video of defendant's statement to Camden County Prosecutor's Office Sergeant Trish Taulane and Camden City Police Department Detective Steve Garcia; he was then one month away from his eighteenth birthday. He acknowledged being present but denied having entered the house until after the killings were over. Because defendant's mother could not be located, the interview took place in the presence of his sister, Maureen Camper. Camper was Shaniqua and Darryl's mother. Defendant was initially charged as a juvenile, but the matter was waived to adult criminal court.

After defendant's interview, Taulane asked Camper about speaking with her children. Shaniqua and Darryl were interrogated on March 8, 2010, and March 10, 2010, respectively.

We describe the circumstances in the record involving defendant's points on appeal, regarding the admission of his statement and other alleged trial errors, in the relevant section of the opinion. Defendant through counsel raises the following issues:

POINT I
THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE CURATIVE INSTRUCTIONS AFTER THE PROSECUTOR GAVE A SUMMATION WITH HIGHLY PREJUDICIAL AND INACCURATE ASSERTIONS THAT BLOOD ON THE DOORWAY, THE WALLS, AND THE CEILING "TESTED POSITIVE AS THE DEFENDANT'S DNA."

POINT II
THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE A CURATIVE INSTRUCTION AFTER THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT BY REFERENCING HIS FAILURE TO ASSERT HIS INNOCENCE DURING HIS POLICE INTERROGATION.

POINT III
THE PROSECUTOR'S REPEATED REFERENCES TO THE GUILTY PLEA OF THE NON-TESTIFYING CODEFENDANT KUASHEIM POWELL IMPROPERLY IMPLIED THE DEFENDANT'S GUILT AND DEPRIVED HIM OF A FAIR TRIAL (Not raised below).
POINT IV
THE TRIAL COURT ERRED WHEN IT HELD THAT DEFENDANT'S WAIVER OF HIS RIGHT TO REMAIN SILENT WAS KNOWING AND VOLUNTARY WITHOUT CONSIDERING THAT HIS PARENT WAS ABSENT, WITHOUT ENSURING THAT HE UNDERSTOOD HIS RIGHTS, KNOWING THAT HE WAS ONLY WITH HIS SISTER WHO HAD A CONFLICT OF INTEREST, AND AFTER HE SAID HE DID NOT WANT POLICE TO QUESTION HIM.

A. The Defendant's Statement Must Be Suppressed Because Police Persisted in Questioning the Defendant After He Told Them He Did Not Want to Be Questioned.

B. The Trial Court Erred When It Failed to Suppress Defendant's Statement Because He Was Accompanied By His Sister Who Had a Conflict of Interest Since Her Two Children Were Also Suspects in the Murders.

C. The Trial Court Erred When It Deemed Defendant's Waiver "Knowing and Voluntary" Without Considering the Absence of His Parent at the Interrogation.

D. Police Failed to Explain Miranda Warnings to the Defendant Using Language that He Could Understand.

POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE AGGREGATE SENTENCE OF 45 YEARS ON A DEFENDANT, IMPOSING THE MINIMUM SENTENCE FOR MURDER BUT NOT EXPLAINING WHY IT IMPOSED FIVE YEARS MORE THAN THE MINIMUM SENTENCE FOR MANSLAUGHTER.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

In addition, defendant pro se raises the following arguments:

POINT I
THE COURT BELOW ERRED IN IMPOSING RESTITUTION, I.E., FINES, WITHOUT FIRST HOLDING A HEARING TO ACCESS DEFENDANTS'/APPELLANTS' ABILITY TO PAY WHILE INCARCERATED, VIOLATED FEDERAL AND STATE DUE PROCESS RIGHTS AND EQUAL PROTECTION RIGHTS UNDER U.S. CONSTITUTION XIV; N.J. CONST. (1947) ART. I, PAR 1, 5.

POINT II
THE COURT BELOW ERRED IN PERMITTING IMPROPER OTHER WRONGS EVIDENCE BEFORE THE JURY BEFORE HOLDING A 404B HEARING CONTRARY TO THE SIXTH AND FOURTEENTH [AMENDMENTS] OF THE U.S. CONSTITUTION; N.J. CONST. ART. I, PAR. 1, 5 (1947).

POINT III
THE TRIAL COURT ERRED IN FAILING TO HOLD A 'GROSS HEARING' AS TO ALL THE INCONSISTENT STATEMENTS, TESTIMONY OF CO-DEFENDANTS DARRYL PIERRE, SHANIQUA PIERRE, AND SHATARA CARTER CONTRARY TO THE FOURTEENTH AMENDMENT[] OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. AMEND. XIV; N.J. CONST. ART. I, PAR. 1, 10) (1947).

POINT IV
THE TRIAL COURT ERRED BY FAILING TO CHARGE AGGRAVATED ASSAULT SUA SPONTE AND DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL (U.S. CONST. VI, XIV; N.J. CONST. ART. I, PAR. 1, 10 (1947).

POINT V
THE TRIAL COURT ERRED IN FAILING TO ISSUE A CLAWANS JURY CHARGE DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL (U.S. CONST. VI, XIV; N.J. CONST. ART I, PAR. 1, 10 (1947).
POINT VI
THE CUMULATIVE EFFECT ERROR OF ALL ERRORS DENIED DEFENDANT/APPELLANT OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL THUS CONVICTION IS CONTRARY TO THE VI, XIV OF THE U.S. CONST.; AND N.J. CONST. ART. 1, PAR. 1, 10 (1947).

POINT VII
THE APPELLANTS'-DEFENDANTS' JUVENILE DE FACTO LIFE WITHOUT PAROLE SENTENCE IS UNCONSTITUTIONAL PURSUANT TO THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND MILLER V. ALABAMA, 132 S. CT. 2455 (2012), AND IS THEREFORE AN ILLEGAL SENTENCE.

SUBPOINT A
THE EIGHTH AMENDMENT REQUIRES A SEPARATE ANALYSIS FOR JUVENILE OFFENDERS PROPORTIONALITY.

SUBPOINT B
THE SENTENCE WAS OFFENSE BASED AND NOT OFFENDER BASED AS ENVISIONED IN MILLER.

SUBPOINT C
MANDATORY SENTENCES UNCONSTITUTIONALLY DEPRIVE JUVENILES OF ANY CONSIDERATION OF THE RELEVANT CHARACTERISTICS OF YOUTH.

SUBPOINT D
MANDATORY SENTENCES FOR JUVENILES IMPERMISSIBLY UNDERMINES THE RELIABILITY OF THE SENTENCE AS IT RELATES TO DEFENDANTS MORAL CULPABILITY AND POTENTIAL FOR MATURITY AND REFORM.

SUBPOINT E
JUVENILES ARE PARTICULARLY VULNERABLE TO NEGATIVE INFLUENCES AND OUTSIDE PRESSURES.

SUBPOINT F
APPELLANT WAS UNDER THE INFLUENCE OF AN ADULT WHICH REDUCED HIS CULPABILITY.
SUBPOINT G
APPELLANT WAS 17 YEARS OLD AT THE TIME OF THE OFFENSE, THE DE FACTO LIFE WITHOUT PAROLE SENTENCE THAT HE RECEIVED VIOLATED THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT UNDER BOTH STATE AND FEDERAL CONSTITUTIONS.

We address those issues worthy of discussion. See R. 2:11-3(e)(2).

I.

The parties stipulated that DNA evidence collected from co-defendants' clothing, and the second floor of the premises, belonged to Hawkins. Just before the stipulation was read to the jury, Camden County Prosecutor's Office Senior Investigator Steven Settles testified that none of the physical evidence collected at the scene, including blood swabs, linked defendant to the crime.

In her summation, the prosecutor described Hawkins' murder and displayed a diagram of the bedroom in which it occurred. In the midst of her discussion of the assault, his injuries, and the blood spatter on the walls, floor, and ceiling, she said:

Now, the areas that are circled there, those areas are relevant to the stipulation that I read to you. Those came back and — and tested positive as the defendant's [sic] DNA. We know that they came from down below. That's the bottom of the doorway near the floor that the crime scene investigators swabbed. We know that his blood was up on the wall. You recall that's the frame around the heater vent, a few feet
up. We know that his blood was much higher up on the wall, that it was close to the ceiling. And we know that there was actually his blood on the ceiling.

[(emphasis added).]
She went on to discuss the gang's reasons for the attack.

Only defendant noticed the misstatement. After the lunch break, he mentioned it to his attorney, who asked the judge for a corrective instruction to the jury if the statement had in fact been made. Defendant's observation was not confirmed; no corrective instruction was issued. Defendant now contends this misstatement was highly prejudicial. We do not agree.

In his preliminary charge, the trial judge instructed the jury that they must decide the case solely on the evidence presented to them. Model Jury Charge (Criminal), "After Jury Is Sworn" (2012). In his remarks immediately before summations, the judge reminded the jury that "nothing that the attorneys argue in closing arguments constitutes evidence[.]" Model Jury Charge (Criminal), "Final Charge" (2014). The defense attorney also reminded the jury during his summation that nothing either he or his adversary said in closing was evidence.

"[T]o justify reversal, [a] prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Harris, 181 N.J. 391, 495 (2004)).

Clearly, the prosecutor's statement was wrong. Hawkins' DNA, not defendant's, was splattered in the room where he died and taken from clothing belonging to his co-defendants. The comment did not, however, substantially prejudice defendant's right to a fair trial.

The prosecutor's reference was a mistake, made only once, and in context the jury would have understood the remark to be nothing more than a slip of the tongue. Therefore, "[v]iewing the summation as a whole, [it] cannot fairly [be said] that the prosecutor's errant remark was so egregious as to deny defendant[] a fair trial." State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied 130 N.J. 393 (1991). "Moreover, the trial court's charge to the jury that statements made by the attorneys were not to be considered as evidence obviated any lingering potential for undue prejudice." Ibid. This fleeting reference, albeit erroneous, did not deny defendant a fair trial or unduly prejudice the outcome.

II.

Defendant also contends that certain of the prosecutor's comments "left the jury with the impression that a truly innocent defendant would have proclaimed his innocence to the police[.]" By doing so, defendant argues, his Fifth Amendment right to remain silent was violated. This claim also lacks merit.

While discussing the scene of the murders, the prosecutor touched upon defendant's statement to investigators that although he was present, he was not involved in anything that took place in the house:

And then try to imagine her boyfriend, Shatara's boyfriend, this defendant, just out on the front porch all by himself. Because that's where he said he was. "I don't have any involvement in that. I wasn't involved in any of that." He's going to be all by himself. That's the story that he told [] Taulane. And I want you to think about his demeanor as he told that story.

. . . you all watched the video of his testimony. He's sitting in a chair, like this, leaning against a wall, leaning back, kinda like this, and the whole time he's talking, he's going like this. Doesn't have a care in the world.

If you thought that you were being falsely accused of murder — because he knew why he was there. He knew they were looking for him. What would your demeanor be in that statement? What would you do when you came in? How would you behave? Would you be all calm and cool like that? Not even a little bit. You would be like, "Oh my God. What do you mean? You think I did something
like that? I would never do anything like that. I wasn't even there."

While the prosecutor was saying this, she "had walked up into the witness stand and was sitting in the chair, rocking back and forth in the same manner that the defendant did [while making] his statement." --------

Defendant's counsel objected on the basis that the comments violated defendant's Fifth Amendment rights. The trial judge overruled the objection, finding that the prosecutor was only describing defendant's demeanor.

In his March 7, 2010 statement, defendant said that on the day of the murders he was outside with Darryl, Shatara and Shaniqua when Powell arrived. He claimed he remained outside when Powell, Wideman, Hinds, and Hardwick went inside.

Defendant added that he knew nothing about events inside the house:

No, I don't know who killed who, how it happened. All I . . . know is that I was the last one standing outside and everybody else went in the house. Not immediately but they went in the house before I did. You feel me so I can't tell you exactly who did what, who shot who, who did this, who did that. Like I said I was outside smoking, went in the house and seen blood everywhere.

"New Jersey's privilege against self-incrimination, although not enshrined in the State Constitution, is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J. 551, 567 (2005); see N.J.S.A. 2A:84A-19 (stating "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate . . . ."); accord N.J.R.E. 503. "There can be no doubt that the right of an accused or a suspect to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state." State v. Deatore, 70 N.J. 100, 114 (1976).

"The practical effect of the privilege to remain silent is . . . that when a defendant expressly refuse[s] to answer, no inference can be drawn against him . . . and no comment thereon may be made to the jury." Id. at 115 (internal citation omitted). Nor can the State "impeach a defendant with his silence while under interrogation by the police 'at or near' the time of his arrest" because "a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at trial and cannot be penalized directly or indirectly if he does not." Muhammad, supra, 182 N.J. at 570 (quoting Deatore, supra, 70 N.J. at 115).

This well-established privilege applies, however, when a defendant maintains silence when arrested, or is cross-examined about a defense not raised during his initial discussion with police. Compare Muhammad, supra, 182 N.J. at 573 (holding "defendant was not obliged to give the police the exculpatory story his attorney presented at trial"); State v. Lyle, 73 N.J. 403, 410 (1977) (holding "it was manifestly improper to use defendant's silence to attack his self-defense theory as a fabrication"); Deatore, supra, 70 N.J. at 107, 115-16 (holding that failure to voice exculpatory information to the police at or about time of arrest cannot be used to impeach a defendant's exculpatory testimony).

In contrast, the prosecutor in this case was only commenting on defendant's demeanor while he made exculpatory statements. Although it may have been more prudent not to have commented at all, defendant's Fifth Amendment rights were not abridged. The comments did not deprive him of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999) (noting "prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial"). They did not highlight his silence. They were not references to narratives at variance with trial testimony.

III.

Defendant also argues that his right to a fair trial was violated when an officer testified that Powell had entered into a guilty plea to murder. He further asserts that the reference to Powell's murder plea might have caused the jury to find him guilty of conspiracy.

A co-defendant's guilty plea may not be used as substantive evidence of a defendant's guilt. State v. Adams, 194 N.J. 186, 208 (2008). "[A] defendant is entitled 'to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.'" Ibid. (quoting State v. Stefanelli, 78 N.J. 418, 430-31 (1979)).

On cross-examination, Shaniqua said that no testifying co-defendant had entered a guilty plea to murder. The defense strategy was to have a basis from which to imply that the State was overreaching because defendant was charged with two murders.

On redirect, the prosecutor corrected Shaniqua, who agreed that Powell had pled guilty to murder. Defense counsel also questioned Darryl and Shatara about their plea agreements. The prosecutor examined Taulane about the pleas entered by co-defendants, and she responded that Powell had entered a guilty plea to murder and received a thirty-year sentence.

Here, defense counsel elicited the incorrect information that no co-defendant had pleaded guilty to murder in order to make the point that defendant was being treated in a fashion disproportionate to the others. It was therefore unobjectionable for the State to have corrected Shaniqua's error in front of the jury.

The testimony, not objected to by defense counsel, is grounds for reversal only if clearly capable of producing an unjust result. R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013). "The possibility [of an unjust verdict] must be real, one 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. 325, 336 (1971).

Three participants in the homicides testified on behalf of the State as to defendant's role. In doing so, naturally, their guilty pleas were explored. Thus the jury would have known, even if not brought out by the defense, that at least the testifying co-defendants pled guilty, and the length of their sentences. Even if presenting the jury with the information regarding Powell's plea was error, which it was not, it was unavoidable and harmless.

Finally, defendant invited the error of which he now complains. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). Defendant's trial strategy necessitated eliciting testimony regarding his co-defendants' guilty pleas. If error, any error was invited error.

IV.

Defendant next argues that the court should have suppressed his videotaped statement because: it was not voluntary, he was accompanied by his sister who had a conflict of interest since her two children were also being investigated, his parents were not present, and, while explaining Miranda, the police used language he could not understand. He also contends admission of the statement was highly prejudicial because, although not inherently inculpatory, it placed him at the scene, corroborating testimony by co-defendants who otherwise gave inconsistent stories. Additionally, the statement acknowledged that he and Hawkins were in rival gangs, thus providing a motive for assault.

The State bore the burden of proving beyond a reasonable doubt that defendant, once advised of his rights pursuant to Miranda, supra, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, knowingly, voluntarily, and intelligently waived them. State v. Presha, 163 N.J. 304, 313 (2000). In analyzing such issues, a court looks to the totality of the circumstances, including the individual characteristics of a defendant, and the nature of the questioning. State v. Galloway, 133 N.J. 631, 654 (1993). A trial court's findings of fact in those respects are entitled to deference so long as they are supported by sufficient, credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007); see also State v. Locurto, 157 N.J. 463, 474 (1999).

"[A] parent or legal guardian should attend a juvenile interrogation whenever possible to help assure that any waiver of rights by the juvenile is the product of free will." Presha, supra, 163 N.J. at 322. "[T]he absence of a parent or legal guardian from the interrogation area [is] a highly significant fact when determining whether the State has demonstrated that a juvenile's waiver of rights was knowing, intelligent, and voluntary." Id. at 308. "[P]olice officers must use their best efforts to locate a parent or legal guardian before beginning the interrogation." Id. at 316. "Moreover, to sustain the admissibility of incriminating statements made outside of the adult's presence, prosecutors are required to show to the trial court's satisfaction, upon sufficient proofs, that they were unable to locate the adult." Ibid.

Detective William Wiley of the Camden City Police Department, assigned to the United States Marshall's Fugitive Task Force, explained during the Miranda hearing that on March 7, 2010, defendant's grandmother called and said defendant would be arriving at the Marshall's Office with Camper. The Marshall contacted the investigating officer, who transported defendant from the Marshall's Office to the Prosecutor's Office. Camper followed in her own car. During the car ride to the Prosecutor's Office, Taulane did not discuss anything with him, nor did she discuss anything with Camper before the taping began approximately ten minutes after their arrival.

When defendant was interviewed, he was one month away from his eighteenth birthday. Camper remained in the room during the interview at his request.

After the investigating officer reviewed the "juvenile statement of rights" with defendant, she asked if he wished to waive his rights:

[Defendant] Before I answer this like to be honest with I'm not really wit being questioned. Like I talked to the um what's the guy, Marshall or whatever and I told him that I was going to state the odd. And I told him that I'm not really wit any questions being answered. I mean asked.

[Officer] Look do you understand what we just read to you is we can talk to and at any point during the time that we are talking to you, you can stop the questioning and say I don't want to talk.

[Defendant] I just want to make sure.

[Officer] Yeah. But I want make sure you understand that you also have a right that says . . . can you read that out loud?
[Defendant] (reading) I have read the statement of rights shown above. I do not want a lawyer at this time, no promises or threats have been made to me, no pressure . . . what's that word say?

[Officer] Coercion

[Defendant] Coercion of any kind have

[Officer] Have been used against me

[Defendant] (continues reading) I waive my rights. I am willing to answer questions and make a statement. I'm willing to tell you my part.

[Officer] And that's, and that's what that basically means is you can, we can sit here and you can just talk to us and we won't ask you any questions. If you just want to sit here and tell us what you know and what you don't know, that's fine. But I'm not going to say that, I mean I could ask you questions but if you choose not to answer those questions, that's fine.
Defendant signed the juvenile waiver after this exchange, and Camper signed the "parent/guardian/adult relative or friend waiver[.]"

Defendant then began to talk about the "Hoover guy that got killed," and he acknowledged being a member of the Piru Street gang. He said that Hawkins was Powell's friend, and that Powell was the leader of the gang in Camden. He identified Darryl, Shaniqua, Dennis, Powell, Hinds, Hardwick, Fulton, Wideman, among others, as also being members present that day. Defendant said that he "came to find out that [Hawkins] was basically 'a spy' and he was trying to kill all of us . . . and like basically all I know about that guy he stole [a bottle of tequila] from the homies and he was trying [to] get us shot up and killed[.]"

Defendant claimed he was outside smoking with the others, who went inside at some point. When he finally entered the house, he saw blood everywhere. He added that he did not know "who did what, who shot who, who did this, who did that[.]" When asked what he did when he entered the house, defendant refused to say anything else, and the interview stopped.

Taulane did not recall the details of the steps she took to reach defendant's parents, but thought a Merchantville address had been explored, and that efforts had been made to locate a school attended by defendant. She also testified that she believed defendant's mother was in New York and that an unsuccessful attempt was made to call her. Taulane recalled asking Camper for defendant's mother's whereabouts, but that Camper had no contact information.

The officer explained that she interpreted defendant's statements that he was "not really wit being questioned" and that he "was going to state the odd[,]" to mean that he would talk but would not answer questions. When he asked about the word "coercion," she assumed he understood it, but could not read it.

The judge who conducted the hearing found beyond a reasonable doubt that defendant's statement was "freely, knowingly and voluntarily given and intelligently given" based on "the totality of what [he] saw and heard, [defendant's] body language, the words, the execution of [the waiver form], what [he] saw on the videotape." The judge pointed out that defendant said he was willing to "tell" his "part," using language not included on the waiver form. The largely exculpatory statement itself was indicative of a willingness to try and cooperate with the interviewers.

The judge further found the investigating officer's testimony that she attempted to locate a parent credible. He did not consider Camper to have had a potential conflict during the interview because she was not aware that the authorities wanted to meet with her children. He observed that despite defendant's difficulty in reading the word "coercion," he seemingly understood it.

That this defendant's parents could not be located did not make his statement inadmissible. Moreover, defendant's arrival at the Marshal's Office was at the behest of members of his family.

We also agree with the judge that Camper had no more than a "potential" conflict. She did not know until after the interview ended that investigators wanted to speak with her children as well. She did not interject herself into the questioning in any event.

Finally, defendant's purpose was to exculpate himself. Although he may have failed because he placed himself at the scene, we agree that casts a different light on the voluntariness of the statement. When defendant was asked questions he did not want to answer, he immediately stopped the interview.

In light of the totality of the circumstances, we concur that defendant's waiver was knowing, intelligent, and voluntary. The judge's findings are supported by the record and warrant affirmance.

V.

In sentencing defendant, the trial judge found aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); two, the gravity and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1a(2); three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); five, the likelihood that defendant is involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); six, the extent of his prior criminal record and the seriousness of his prior offenses, N.J.S.A. 2C:44-1a(6); and nine, the need to deter him and others from violating the law, N.J.S.A. 2C:44-1a(9). Although trial counsel argued a number of mitigating factors, the judge found only mitigating factor thirteen, that defendant's conduct was substantially influenced by another more mature than he, N.J.S.A. 2C:44-1a(13). In weighing the statutory factors, the judge concluded the aggravating clearly outweighed the single mitigating factor.

Defendant now contends that the trial court imposed an excessive and internally inconsistent sentence. He bases his argument on the judge's imposition of the minimum sentence for Hawkins' murder and five years more than the minimum sentence for Huff's aggravated manslaughter.

We first address the claim that the judge did not state the reasons he imposed the minimum sentence as to one offense but not the other. To the contrary, the judge thoroughly explained his view of the key distinction between Hawkins' murder and Huff's killing. The conduct involved was horrific in both instances, but he considered Huff's killing truly inexplicable; at eighteen, she was not a gang member and had not stolen anything from anyone. Therefore, that the sentence for Hawkins' killing was the minimum term of imprisonment, while the other was not, was a function of the nature of the crimes and was thus proper.

We review sentencing decisions deferentially and do not substitute our judgment for that of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). A sentence is affirmed

unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

With regard to the decision to impose either consecutive or concurrent sentences, a sentencing court considers:

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 . . . .

[State v. Carey, 168 N.J. 413, 423 (2001) (quoting 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)).]
"Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." Id. at 428.

By imposing thirty years without parole on the murder conviction, the minimum, followed by a fifteen-year term on the aggravated manslaughter, on the low end of the sentencing range, the judge did not violate the sentencing guidelines. The aggravating factors have considerable support in the record. He sufficiently explained his reasons for rejecting the mitigating factors defendant urged. See State v. Bieniek, 200 N.J. 601, 609 (2010). Consecutive sentences were virtually mandated by the separate deaths of the victims.

We do remand the matter, however, for the trial court to consider merger of the conspiracy counts with the substantive offenses. See State v. Hardison, 99 N.J. 379, 386 (1985). The sentence is otherwise affirmed.

VI.

We consider all but one issue raised by defendant in his pro se brief to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The points either lack support in any known precedent or are misapplications of the law to his case. We will, however, briefly address his argument that his juvenile status when charged, and the length of the terms, make his sentence a de facto life sentence, unconstitutional pursuant to the United States Supreme Court's holding in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

First, defendant was convicted as an adult, not in the juvenile system. At the time of the offense, he was a month away from turning eighteen.

Moreover, defendant's sentence was not to life without parole, although he contends that it is the equivalent of life without parole because of his age. Defendant will be eligible for parole at age sixty-six. This gives him an opportunity, within the meaning of the cases following Miller, for a chance at life outside prison walls. See Graham v. Florida, 560 U.S. 48, 79, 130 S. Ct. 2011, 2032, 176 L. Ed. 2d 825, 848 (2010). Therefore, this sentence was not the equivalent of a sentence to life without parole imposed on a juvenile.

Affirmed, except as remanded pursuant to our opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Leonce

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 16, 2016
DOCKET NO. A-3711-13T2 (App. Div. Sep. 16, 2016)
Case details for

State v. Leonce

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER LEONCE…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Sep 16, 2016

Citations

DOCKET NO. A-3711-13T2 (App. Div. Sep. 16, 2016)