NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2238-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMEEL N. JONES, a/k/a NAIM MCKINLEY, MARVIN CAMPBELL, JAMIL JONES, JAMIL N. MCKINLEY, and JAMIL WILLIAMS,
Defendant-Appellant. _______________________
Submitted April 6, 2022 – Decided September 23, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-09-2827.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the briefs).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Caroline C. Galda, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Defendant was charged in an Essex County indictment with murder,
N.J.S.A. 2C:11-3(a)(1) and -3(a)(2) (count one); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
three). He entered a negotiated guilty plea to count one, as amended to first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and count two. He
was sentenced to a fifteen-year term of imprisonment, with an eighty-five
percent period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, on count one, and a concurrent five-year prison
term with forty-two months of parole ineligibility on count two.
The convictions stemmed from the June 7, 2018 shooting death of
Shamarr Cohen outside a liquor store in Newark. Once defendant became a
suspect in the investigation, he was arrested on two outstanding municipal court
warrants, advised by homicide detectives that he was going to be questioned
A-2238-19 2 regarding the homicide, and given Miranda1 warnings. Defendant waived his
rights, ultimately gave an incriminating statement, and subsequently opposed
the State's motion to admit the statement at trial. After the trial judge granted
the State's motion to admit the statement, defendant pled guilty pursuant to a
plea agreement and was sentenced in accordance with its terms.
On appeal, defendant raises the following points for our consideration:
POINT I
[DEFENDANT'S] MIRANDA WAIVER WAS NOT KNOWING AND VOLUNTARY BECAUSE THE INTERROGATING DETECTIVE FAILED TO STATE THAT [DEFENDANT] WAS UNDER ARREST FOR THE HOMICIDE, BUT INSTEAD DECEIVED [DEFENDANT] INTO BELIEVING THAT HE WAS ONLY UNDER ARREST FOR MUNICIPAL COURT WARRANTS. U.S. CONST. AMEND. V, XIV; N.J. CONST. ART. I, PARA. 1.
POINT II
[DEFENDANT] SHOULD BE RESENTENCED BECAUSE THE COURT IMPROPERLY FAILED TO FIND MITIGATING FACTOR SEVEN -- THAT [DEFENDANT] HAD "LED A LAW-ABIDING LIFE FOR A SUBSTANTIAL PERIOD OF TIME" -- EVEN THOUGH [DEFENDANT'S] LAST OFFENSE WAS ABOUT ELEVEN YEARS BEFORE THE PRESENT ONE.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-2238-19 3 Having reviewed the record in light of the applicable legal principles, we affirm.
I.
We glean these facts from the Miranda hearing conducted on May 9 and
10, 2019, during which Detective Javier Acevedo, assigned to the Homicide
Task Force of the Essex County Prosecutor's Office, was the sole witness for the
State.
On June 7, 2018, Cohen was shot after purchasing "nip" bottles of alcohol
at a liquor store located at the intersection of Roseville and 7th Avenues in
Newark. Police found Cohen lying in the grass in front of 379 7th Avenue
suffering from an apparent gunshot wound to the head. Cohen was transported
by paramedics to University Hospital, where he died the following day.
Responding officers recovered a pair of eyeglasses and "nip" liquor bottles at
the crime scene.
On June 8, the day after the shooting, Acevedo, who was the lead
detective, interviewed an eyewitness who said that he, Cohen, and a man he
knew as "Bad News" had been hanging out and drinking on the night of the
shooting. The eyewitness described how "Bad News" and Cohen got into an
argument and "Bad News" eventually shot Cohen. Acevedo searched Facebook
and linked the nickname "Bad News" to defendant. He prepared a photo array
A-2238-19 4 with defendant's photo, and the eyewitness identified defendant as the person
who shot Cohen.
During the investigation, Acevedo also obtained surveillance video from
the liquor store. The video showed the eyewitness, Cohen, and defendant
together in the store about one hour and forty minutes before the shooting. In
the video, defendant was wearing black framed eyeglasses. Defendant was also
captured on a police officer's body camera returning to the scene about an hour
after the shooting inquiring about what had happened. In the body camera
footage, defendant was no longer wearing eyeglasses.
Armed with this information, on June 13, 2018, Acevedo directed two
homicide detectives from his squad to conduct visual surveillance of the
building where defendant was residing and arrest defendant when he "emerged
from the residence" on two outstanding municipal court warrants — one for a
traffic ticket in Carteret and one for a domestic violence assault charge in
Newark from 2009. Shortly before noon that same day, the detectives arrested
defendant. Acevedo arrived on the scene soon thereafter and observed
defendant under arrest, seated in the back of a squad car.
After pinpointing the location of defendant's apartment, Acevedo returned
to his office and prepared an affidavit to support a search warrant application
A-2238-19 5 for defendant's apartment.2 In the affidavit, Acevedo described the shooting and
the evidence gathered up to that point, including the eyewitness' statement and
identification of defendant, the eyeglasses and liquor bottles found at the scene,
and the corroborating surveillance and body camera footage. Acevedo also
averred that he had "probable cause to believe" that the apartment contained
evidence of the homicide.
The warrant was issued at 1:11 p.m. and executed at 1:42 p.m. During the
execution, .38 caliber bullets and small "nip" liquor bottles that matched the type
found at the scene were recovered from the apartment. Defendant was then
transported to the prosecutor's office and placed in an interview room where he
was interrogated for about two and one half hours by Acevedo and Essex County
Prosecutor's Office Detective Anneesha Ford.
Acevedo testified that before the interrogation commenced, defendant
seemed "very anxious to talk" about "what happened." However, Acevedo
repeatedly told defendant that he could not talk to him without being on
videotape. Acevedo delayed commencing the interrogation because he had to
strategize and gather items needed for the interrogation, including the standard
2 The apartment was leased by the mother of defendant's girlfriend. At the time, defendant was residing in the apartment in a bedroom he shared with his girlfriend. A-2238-19 6 Miranda rights form and still photographs from the liquor store surveillance
video.
The interrogation began at 4:38 p.m. and was electronically recorded
pursuant to Rule 3:17. Both the recording and a transcript of the interrogation
were admitted into evidence at the hearing and reviewed by the judge. Although
defendant was not handcuffed during the interrogation, an ankle bracelet secured
him to a desk.
We detail key aspects of the interrogation for context. At the outset, after
introducing himself as a homicide detective and obtaining defendant's pedigree
information, Acevedo informed defendant that he was "under arrest for some
unrelated warrants." Specifically, Acevedo told defendant he had "an active
traffic warrant out of Carteret" and "a simple assault domestic related warrant
out of Newark."
After defendant commented that the assault warrant was "old," the
following exchange occurred:
[ACEVEDO:] Okay. I just have to advise you as to why you're under arrest. Okay. That's the reason why you're under arrest.
[DEFENDANT:] Why am I here[?]
A-2238-19 7 [ACEVEDO:] Okay. We're going to get to that. But I have to advise you as to why you're under arrest. Okay. Do you understand that?
[DEFENDANT:] Yes, sir.
[ACEVEDO:] Okay. All right. Now, so in order for us to speak as to why you're here, I'm going to read you your Miranda rights as I mentioned earlier. This is regarding our investigation number H#47-2018. Date of occurrence is June 7th, 2018, approximately 10:50 p.m. at 379 7th Avenue in the City of Newark. . . .
....
. . . I'm going to ask you certain questions regarding a homicide that occurred in front of 379 7th Avenue in Newark, New Jersey. However, before beginning, I will advise you of your rights. Understood. . . .
Using the Miranda rights form, Acevedo then proceeded to advise
defendant of his right to remain silent, his right to the presence of an attorney
during any questioning, his right to have an attorney appointed if he could not
afford to hire one, his right to stop answering questions at any time, and that
anything defendant said could be used against him in a court of law. Upon
ascertaining that defendant completed the twelfth grade and was able to read and
understand the English language, Acevedo asked defendant to "initial" the form,
indicating that he was informed of each right. Defendant complied.
A-2238-19 8 At that point, defendant asked for clarification as to whether he was "only
being questioned" or "[being] charged" with the homicide. Acevedo responded,
"[y]ou have not been charged with anything. The only reason why you have
been detained and have a cuff on your foot is because you have those two active
warrants. That's it. Okay." Ford added, "[t]his is simply questioning."
Next, defendant insisted that the simple assault case was "supposed to
[have] been done," and protested that he "ha[d] not been in trouble since 2007."
The detectives responded:
[FORD:] Before we get into all of that, you're going to have the opportunity to tell us all that stuff.
[ACEVEDO:] It's just a formality.
[FORD:] It's formalities. We have to make sure that you're covered and make sure that we're covered before we talk about anything.
At Acevedo's request, defendant then read the following statement aloud
from the Miranda form:
I have been advised and I have read the statements of my rights shown above. I understand what my right[s] are. I am willing to answer questions and make a statement. I do not want a lawyer at this time but understand that I may have one at any time I so desire. I also understand that I may stop answering questions at any time. I understand and know what I'm doing. No promises or threats have been made to me and no pressure of any kind has been used against me.
A-2238-19 9 Defendant stated he "agree[d] with the statement" and, at Acevedo's request,
signed and dated the form, indicating his agreement. Acevedo and Ford also
executed the form, which was admitted into evidence at the hearing.
After administering the Miranda warnings, Acevedo told defendant he was
"going to ask [defendant] some questions about an incident that happened " on
June 7. Defendant responded that he "kn[ew] about the incident . . . because the
streets talk." When asked what he knew, defendant stated he had gone into the
liquor store on Roseville and 7th Avenue the morning after the incident and the
manager had told him that "[t]he kid that [defendant] was talking to about
basketball last night got shot."
Defendant told the detectives he was "new around th[e] block" and
"everybody [was] looking at [him] like [he was] the suspect," but he had
"nothing to do with [it]." Defendant acknowledged that he, the victim, and
others were "together" "drinking" "for a little while" on Roseville and 7th
Avenue, but insisted that he did not "hurt[] anybody." Defendant reiterated that
he had not been in "trouble since 2007," and was adamant that he was "not that
type of dude." Defendant then queried, "[t]hat's why I'm asking why am I in
here man . . . like all I did was talk to this guy."
A-2238-19 10 As the interrogation continued, defendant persisted in denying any
involvement in the incident. When Ford explained to defendant that during the
course of the investigation, they were "talking to everybody," both suspects and
non-suspects, defendant responded, "[b]ut I'm saying ya'll treating me like I was
a suspect. Ya'll say I'm not a suspect, but I feel like I'm being treated like one."
In response, the detectives reminded defendant that he was under arrest because
of the outstanding warrants.
Gradually, defendant divulged more information about his interaction
with the victim on the night in question. Defendant acknowledged that he had
gone to the liquor store with the victim. Defendant stated the victim "was
celebrating" and was "passing out [liquor] bottles" he had purchased at the liquor
store to everyone. According to defendant, they were all outside "just drinking"
and "chilling." Defendant said he finished drinking at about 10:25 p.m., after
which he walked home and "pass[ed] out." His girlfriend woke him at about
11:00 p.m. and told him that "something happened around the corner." When
defendant went back to the corner "to see what [was] going on," he gave a police
officer his name.
As the detectives confronted defendant with inconsistencies in his version
of events, the following exchange occurred:
A-2238-19 11 [DEFENDANT:] Am I being charged with this?
[ACEVEDO:] No. I told you, listen, you were detained because you have the simple assault domestic thing . . . that even you said is old.
. . . And then you also have Carteret. . . .
[DEFENDANT:] So that's the only thing I got, you know what I mean.
[ACEVEDO:] I said it to you about [eight] times tonight.
When Acevedo asked defendant what he would say if Acevedo had
defendant "on video running away . . . at the time of the shooting," the following
exchange occurred:
[DEFENDANT:] So you charging me with something I didn't do?
[ACEVEDO:] I didn't say that. Again, this [is the] ninth time. You're not . . . charged.
Defendant continued to deny killing the victim. When Acevedo asked
defendant to explain the video evidence, this exchange occurred:
[DEFENDANT:] So I am being charged?
[ACEVEDO:] You're not. Ten times.
[DEFENDANT:] Yo, because I didn't kill that man.
A-2238-19 12 [ACEVEDO:] Ten times.
Listen. You want me to show you the warrants? I'll show you the warrants.
[DEFENDANT:] The warrants -- so I got a warrant for murder and this right here?
[ACEVEDO:] No.
At that point in the interrogation, defendant admitted that he had had an
argument with the victim, as a result of which defendant ran away. Defendant
did not remember what the argument was about, but explained that they were
"all standing out there and the next thing [he] kn[e]w," the victim was "grabbing
on [him] . . . [l]ike he was mad about something." Defendant said he ran because
the other man who was with them "said somebody got a gun." Defendant denied
having a gun or owning a gun. Defendant insisted that he "didn't shoot" the
victim and that the victim "was still standing" when he ran away.
When Acevedo told defendant he had found bullets in his room during the
execution of the search warrant, defendant still denied having a gun. When
Acevedo told defendant he did not believe his version, the following exchange
occurred:
[DEFENDANT:] I'm being charged.
A-2238-19 13 [ACEVEDO:] Eleven times. You want more water?
[DEFENDANT:] Yes.
[ACEVEDO:] Listen, You know what. I'll do this. I'll go get a copy of the warrant and show them to you. The ticket from Carteret and the simple assault . . . . And you tell me if I'm lying. Everything I said today is the truth.
[DEFENDANT:] But when I get done here, you know what [I] mean, am I going home?
[ACEVEDO:] Excuse me.
[DEFENDANT:] When I get done here, --
[ACEVEDO:] I don't know what Newark's going to do. I told you. They --
[DEFENDANT:] No, I'm talking about as far as -- I'm talking about as far as this.
[ACEVEDO:] You're not charged.
[DEFENDANT:] No, I mean yo, --
[ACEVEDO:] Let me get a copy of the warrants.
When Acevedo returned with the warrants, defendant stated, "[t]hat's the
least of my worries, man. My worries and all that stuff are on this shit here,
man." Nevertheless, defendant continued to deny shooting the victim or having
a gun. As the interrogation continued, the detectives challenged defendant's
denials until the following exchange occurred:
A-2238-19 14 [DEFENDANT:] So now you saying -- so you are saying ya'll . . . gonna charge me with this.
[ACEVEDO:] I didn't say that. I didn't say that. But, you know, it don't look good when I have to pull the truth out of you.
[DEFENDANT:] I already gave you the truth. I told you.
[ACEVEDO:] I think there's more.
[DEFENDANT:] You got the camera. So what ya'll got on them.
[ACEVEDO:] Again, the camera doesn't tell me your state of mind, what you were thinking.
[DEFENDANT:] Because I didn't kill that man. I didn't kill that man. I gave ya'll -- I told you.
[ACEVEDO:] Right.
[DEFENDANT:] So what's going to happen now? Ya'll charging me with this or you know what I mean because like, yo, I didn't do it. I didn't do it.
[ACEVEDO:] Okay.
[DEFENDANT:] So I need to know what's going on.
[ACEVEDO:] Well, like I said we still have to process you on the warrant . . . .
Defendant continued to deny any involvement in the shooting until the
A-2238-19 15 [DEFENDANT:] Can I make a phone call?
[ACEVEDO:] Yeah.
[DEFENDANT:] To my grandmother?
[ACEVEDO:] Yes.
[DEFENDANT:] Can I speak to my grandmother real quick?
[ACEVEDO:] Tell me now, I'll let you make the phone call. You got my word.
[DEFENDANT:] I ain't going to never see my family, my kids or nothing.
[ACEVEDO:] What happened out there?
[DEFENDANT:] It was an accident, man.
At that juncture, defendant disclosed that he and the victim were "talking
about sports" and the victim "got offended by something [defendant] said." The
victim pushed defendant and the two started "tussling." Defendant admitted that
he had a .32 caliber revolver "in [his] backside." During the "tussling," "[t]he
gun dropped." They both "reached for" the gun and "play[ed] tug-o-war" with
the gun. Defendant "g[o]t control of the gun," and the "[n]ext thing [defendant]
heard was poof" as the gun discharged and "[the victim] fell." Defendant ran
home and "got rid of" the gun. He admitted that the bullets recovered from his
room were "the same brand . . . bullets that were in the gun that night."
A-2238-19 16 After defendant confessed, he asked what he was being charged with.
Acevedo responded that he did not know because he had "to talk to attorneys"
and "supervisors." The interrogation ended at 7:10 p.m. Later that night,
defendant was charged by complaint-warrant with murder, unlawful possession
of a handgun, and possession of a handgun for an unlawful purpose. The
complaint-warrant was admitted into evidence at the hearing. Acevedo
acknowledged that although he considered defendant a "suspect" in the homicide
at the beginning of the interrogation, he did not inform defendant of his status
as a suspect.
Acevedo also testified that defendant was not threatened physically or
verbally during the course of the interrogation. Acevedo admitted that he "may
have raised [his] voice" and "challenged [defendant] on some of his
inconsistencies," but never disrespected him. Acevedo also stated that
defendant was offered food, water, and bathroom breaks, and was not under the
influence of alcohol or narcotics when he gave the statement.
Following the hearing, the judge entered an order granting the State's
application to admit defendant's statement at trial. In an oral opinion, the judge
found Acevedo "to be very credible," and "[his] demeanor throughout both sides
of questioning . . . steady." Accordingly, the judge made factual findings
A-2238-19 17 consistent with Acevedo's testimony. Applying the facts to the governing law,
the judge concluded that, based on the totality of the circumstances, the State
had proven beyond a reasonable doubt that the "requisite" Miranda warnings
were given, defendant "waived each and every one of those rights before he
made the statement," and defendant's waiver of his Miranda rights as well as his
statement were "knowingly," "intelligently," and "voluntarily" made.
In addressing the argument that defendant should have been told he was a
suspect notwithstanding the fact that no charges had been filed, the judge stated:
[R]ight from the beginning of the statement [defendant] was told the reason he was there was to discuss a homicide that occurred last week, which [defendant] acknowledged that he had heard about. . . . So [defendant] knew right away why the detectives were there and that was to question him about a homicide. And [defendant] was astute enough to realize that . . . and he stated as such that he felt like he was a suspect based on the type of questioning that he had. And to his credit, he's right; he was a suspect.
The judge acknowledged that defendant repeatedly inquired during the
course of the interrogation whether he was being charged with the homicide, and
Acevedo made a "strategic decision" to delay filing the complaint until after the
interrogation. However, according to the judge,
there's nothing in the . . . law that indicates that the police cannot strategize to try to see how best they
A-2238-19 18 should approach an interview with a . . . suspect, a defendant, a witness, whoever that may be.
I . . . would think that . . . they wouldn't be doing their job if they weren't strategizing to see how best to obtain information from . . . whoever it is they're interviewing.
Relying on State v. Vincenty, 237 N.J. 122 (2019), and State v.
Nyhammer, 197 N.J. 383 (2009), the judge reasoned that:
[T]he bright line that the Supreme Court has drawn is whether or not charges have been filed. And charges had not been filed against [defendant] for the homicide. And the detectives had never said that they were, because they weren't. They were . . . about to file them, but they were not filed. And so they never actually lied to [defendant].
And . . . Nyhammer reiterates that there's no obligation by police to inform someone that they're a suspect. So this [c]ourt is bound to follow the law. And my interpretation of those cases is that the police . . . did not violate the rights of [defendant]. They . . . did not deceive him. They . . . did not inform him he was a suspect, although he . . . certainly surmised that he was. And that therefore at least as a matter of per se violation, the [c]ourt does not find that the statement needs to automatically be suppressed . . . .
Instead, the judge considered Acevedo's failure to tell defendant of his
suspect status as "one of the many factors involved in the totality of the
circumstances." Based on his analysis of the totality of the circumstances and
his review of the recorded interrogation, the judge determined defendant's rights
A-2238-19 19 were not violated and the "interrogation was properly conducted." In support,
the judge found:
[Defendant] was provided an opportunity for food, for water, . . . [and] an opportunity to use the restroom. The questioning was not unduly coercive or intimidating. . . . [T]here w[ere] no physical tactics used against [defendant]. And it was about a two[- ]and[-]a[-]half[-]hour interview, which is not unnecessarily too prolonged in nature.
Further, according to the judge, defendant "clearly understood each of the rights
that was presented to him, signed the rights, and seemed to fully understand
what was happening. By his own admissions, he clearly knew that he was a
suspect."
On September 19, 2019, pursuant to a plea agreement, defendant entered
a conditional guilty plea to count one, as amended, and count two. See R. 3:9-
3(f) (permitting a defendant, with the approval of the court and the consent of
the prosecutor, to enter a guilty plea reserving on the record the right to appeal
from the adverse determination of any specified pretrial motion); see also State
v. Camacho, 295 N.J. Super. 585, 589-90 (App. Div. 1996), rev'd on other
grounds, 153 N.J. 54 (1998) ("Although there is no express 'approval' of the
court or 'consent' of the prosecuting attorney [as required under Rule 3:9-3(f)],
we believe there was tacit approval and consent evident in the record as a
A-2238-19 20 whole."). On November 15, 2019, defendant was sentenced in accordance with
the terms of the plea agreement and a memorializing judgment of conviction
was entered on November 18, 2019. This appeal followed.
II.
In Point I, defendant argues the judge erred in admitting his statement
because "Acevedo's deception about the basis for [defendant's] arrest violated
the rule that the arrestee must be told of the charge against him for a Miranda
waiver to be valid." According to defendant, the deception included Acevedo's
"repeated reassurances that [defendant] was not under arrest for the homicide"
notwithstanding the fact that in his search warrant application, "Acevedo had
already argued to a judge that probable cause existed to believe that [defendant]
had committed the homicide." Defendant asserts that "[t]he deception . . . was
so persistent and so integral to obtaining [defendant's] Miranda waiver that no
analysis of the circumstances could show that his waiver was knowing and
voluntary."
"A defendant's statement to the police, made in custody, is admissible if
it is given freely and voluntarily, after the defendant received Miranda warnings,
and after he knowingly, voluntarily, and intelligently waived his rights." State
v. O.D.A.-C., 250 N.J. 408, 413 (2022). "The State must prove beyond a
A-2238-19 21 reasonable doubt that a defendant's waiver was valid." Ibid. (citing State v.
Sims, 250 N.J. 189, 211 (2022)). "Courts look to the totality of the
circumstances to assess whether the State has met its burden." Ibid. "Under the
totality-of-the-circumstances test, courts commonly consider a number of
factors to determine if a Miranda waiver is valid." O.D.A.-C., 250 N.J. at 421.
"They include the suspect's 'education and intelligence, age, familiarity with the
criminal justice system, physical and mental condition, . . . drug and alcohol
problems,' how explicit the waiver was, and the amount of time between the
reading of the rights and any admissions." Ibid. (alteration in original) (quoting
49 Geo. L.J. Ann. Rev. Crim. Proc. 233-36 (2020)).
In State v. A.G.D., 178 N.J. 56 (2003), our Supreme Court held that a
Miranda waiver is invalid "when the police fail to inform [a defendant] that a
criminal complaint or arrest warrant has been filed or issued against him and he
otherwise does not know that fact." A.G.D., 178 N.J. at 58. The Court reasoned
that "[t]he government's failure to inform a suspect that a criminal complaint or
arrest warrant has been filed or issued deprives that person of information
indispensable to a knowing and intelligent waiver of rights . . . regardless of
other factors that might support [the] confession's admission." Id. at 68.
Although the A.G.D. Court held that the defendant's confession should have
A-2238-19 22 been suppressed because the detectives failed to inform the defendant that an
arrest warrant had been issued, the Court stressed that its holding was "not to be
construed as altering existing case law in respect of the manner in which the
police conduct interrogations other than imposing the basic requirement to
inform an interrogatee that a criminal complaint . . . has been filed or issued."
Id. at 68-69.
In Nyhammer, the Court considered "whether the failure to advise an
individual that he is a suspect at the time he is read his Miranda warnings should
be a factor in the totality-of-the-circumstances test." Nyhammer, 197 N.J. at
405. There, law enforcement questioned the defendant about his uncle's role in
alleged child molestation without disclosing that he was also a suspect. Id. at
408-09. The Court held that the defendant's statement was admissible and
explained that while "a valid waiver does not require that an individual be
informed of all information 'useful' in making his decision," "the failure to be
told of one's suspect status still would be only one of many factors to be
considered in the totality of the circumstances." Id. at 407 (quoting Colorado v.
Spring, 479 U.S. 564, 576 (1987)).
In distinguishing A.G.D., the Nyhammer Court stated:
This case also is easily distinguishable from A.G.D. The issuance of a criminal complaint and arrest
A-2238-19 23 warrant by a judge is an objectively verifiable and distinctive step, a bright line, when the forces of the state stand arrayed against the individual. The defendant in A.G.D. was purposely kept in the dark by his interlocutors of this indispensable information. Unlike the issuance of a criminal complaint or arrest warrant, suspect status is not an objectively verifiable and discrete fact, but rather an elusive concept that will vary depending on subjective considerations of different police officers. A suspect to one police officer may be a person of interest to another officer.
[Nyhammer, 197 N.J. at 404-05.]
To be sure, "[i]n Nyhammer, our Supreme Court firmly embraced the principle
that police are not required to '"supply a suspect with a flow of information to
help him [or her] calibrate his [or her] self-interest in deciding whether to speak
or stand by his [or her] rights" because "the additional information could affect
only the wisdom of a Miranda waiver, not its essentially voluntary and knowing
nature."'" State v. Cotto, 471 N.J. Super. 489, 514-15 (App. Div. 2022) (quoting
Nyhammer, 197 N.J. at 407).
In Vincenty, police officers failed to inform a suspect of formal charges
filed against him prior to his interrogation, during which he made incriminating
statements. Id. at 126-29. The Supreme Court reiterated A.G.D.'s mandate that
law enforcement officers "make a simple declaratory statement at the outset of
an interrogation that informs a defendant of the essence of the charges filed
A-2238-19 24 against him." Vincenty, 237 N.J. at 134. The Court viewed the interrogation in
Vincenty to be "precisely what A.G.D. prohibits," as it "illustrates that suspects
cannot knowingly and intelligently determine whether to waive their right
against self-incrimination if, when making that determination, they have not
been informed of the charges filed against them." Vincenty, 237 N.J. at 134.
In State v. Sims, 466 N.J. Super. 346, 367-68 (App. Div. 2021), rev'd and
remanded, 250 N.J. 189 (2022), reconsideration denied, 250 N.J. 493 (2022),
this court expanded the rule announced in A.G.D. and adopted a new rule
requiring officers to tell an arrestee who is not subject to a complaint-warrant or
arrest warrant what charges he faced before any interrogation. There, the
defendant asserted that his Miranda rights were violated because the police did
not tell him why he was arrested. Sims, 466 N.J. Super. at 361. In reversing
our decision, our Supreme Court "decline[d] to adopt the rule prescribed by the
Appellate Division," reasoning that such an expansion was "unwarranted and
impractical." Sims, 250 N.J. at 197, 214.
In elaborating on the impracticality of the rule, the Court stated:
The Appellate Division's rule relies not on an objective statement of the charges pending against the arrestee, but on an officer's prediction, based on information learned to date in a developing investigation, of what charges may be filed. . . . [E]ven when there is probable cause for an arrest, there may be insufficient
A-2238-19 25 information about the victim's injuries, the arrestee's mental state, and other key issues to enable an officer to accurately identify the charges. An officer acting in good faith might inadvertently misinform an arrestee as to the charges that he will eventually face. We do not share the Appellate Division's conclusion that law enforcement officers can resolve any ambiguities or disputes about charging decisions before a judicial officer has reviewed the showing of probable cause and issued a complaint-warrant or arrest warrant.
[Id. at 215-16 (citation omitted) (citing Sims, 466 N.J. Super. at 381-83 (Susswein, J., concurring and dissenting)).]
The Sims Court underscored that trial courts should continue to use "the
totality-of-the-circumstances standard" and that "the root of the inquiry is
whether a suspect's will has been overborne by police conduct." Id. at 217
(quoting State v. Presha, 163 N.J. 304, 313 (2000)). Critically, the Court
explicitly rejected the defendant's argument that "law enforcement officers will
deliberately delay seeking a complaint-warrant or arrest warrant in order to
avoid disclosing to an arrestee the charges that he faces." Id. at 216. The Court
explained that "[i]n a case in which there is evidence of such bad-faith conduct
on the part of law enforcement officers, the trial court should consider such
conduct as part of the totality-of-the-circumstances test." Ibid.
Recently, in Cotto, we had the opportunity to apply the Supreme Court's
holding in Sims. There, following an investigation of suspected arson at a
A-2238-19 26 nightclub, law enforcement officers identified the defendant as a suspect and
determined he had outstanding arrest warrants for traffic violations. Cotto, 471
N.J. Super. at 502, 504. Officers arrested the defendant on the open traffic
warrants and transported him to their headquarters, where he was told he was
under arrest for the traffic summonses, administered Miranda warnings, and,
after waiving his rights, questioned almost exclusively about the nightclub arson
for approximately two hours. Cotto, 471 N.J. Super. at 504, 506.
"At the outset of substantive questioning, the detectives explained that
they wanted to talk to defendant about something other than the traffic warrants
and then immediately directed defendant's attention to the nightclub" by asking
the defendant what he had heard about the arson. Id. at 520. When the defendant
asked whether he was being questioned about the arson, "the detective asked
again what had happened, and [the] defendant answered, 'they said some
Mexican dude threw . . . some gasoline.'" Id. at 507 (alteration in original). As
the interrogation continued, the defendant persistently denied setting the fire.
Id. at 507-09. However, toward the end of the interrogation, when the detectives
told the defendant he was going to be charged with aggravated arson, the
defendant agreed to "continue to talk about the arson charge" while "imploring
the detectives not to charge him." Id. at 510. After the defendant was re-
A-2238-19 27 administered Miranda warnings and waived his rights, he made incriminating
statements which the trial court found admissible. Cotto, 471 N.J. Super. at 510,
512.
On appeal, the defendant argued "that the detectives . . . violated his Fifth
Amendment rights by failing to inform him during the Miranda waiver colloquy
that he was suspected of and would eventually be charged with aggravated
arson." Id. at 512. We rejected the argument. We concluded the "police
complied with A.G.D.'s per se rule by telling defendant he was arrested for
outstanding traffic warrants." Cotto, 471 N.J. Super. at 519-20. We determined
"that [the] defendant's constitutional rights were not violated by the fact th at
police executed those warrants because they wanted to talk to him about the
nightclub arson." Id. at 520. We noted "the bright-line notification requirement
announced in A.G.D. is triggered only by the actual issuance of an arrest warrant
or complaint-warrant, and not by the fact that police have probable cause to
support an application for such a warrant." Cotto, 471 N.J. Super. at 518 n.7.
We stressed that "although [the] defendant indisputably was a suspect in the
arson investigation, because charges had not been filed concerning that crime,
the detectives were not required pursuant to a bright-line rule to alert [the]
A-2238-19 28 defendant as to his suspect status during the initial Miranda waiver colloquy."
Cotto, 471 N.J. Super. at 520 (citing Sims, 250 N.J. at 210-14).
In specifically addressing the argument that the officers "strategically"
chose to arrest the defendant "for the outstanding traffic warrants, without
mentioning the arson investigation, to obtain [the defendant's] Miranda waiver
and evade the dictates of . . . A.G.D.," we stated:
[E]ven accepting for the sake of argument that the detectives had probable cause to believe defendant committed aggravated arson before the interrogation commenced, and thus expected and intended to apply for a complaint-warrant charging aggravated arson, we do not see evidence of bad-faith interrogation tactics that violated [the] defendant's constitutional rights.
[Cotto, 471 N.J. Super. at 520.]
In contrast, in State v. Diaz, we disapproved of "the form of deception"
that occurred "as part of the waiver process" during an interrogation and
affirmed the trial court's suppression of the defendant's incriminating statement,
which linked the defendant to a strict liability drug-induced homicide offense.
470 N.J. Super. 495, 502-03, 525 (App. Div. 2022). There, in the course of
investigating a homicide resulting from a "fatal heroin overdose," law
enforcement officers arrested the defendant leaving his residence. Id. at 502,
A-2238-19 29 531. The defendant had eight bags of heroin on his person and additional heroin
inside his apartment. Id. at 531.
Prior to arresting the defendant, police had been advised by the victim's
roommate that she had shared heroin with the victim immediately prior to her
overdose death, which heroin the roommate had purchased from the defendant
the night before. Id. at 504, 530. Additionally, at law enforcement's request,
the roommate had agreed to a consensual intercept of a telephone conversation
with the defendant during which the defendant had agreed to come immediately
to the roommate's apartment to sell her more heroin. Id. at 504-05, 530.
When the defendant was arrested outside his residence and administered
his Miranda rights, he was unaware of the overdose death. Diaz, 470 N.J. Super.
at 505-06, 508, 530-31. In response to the defendant's "inquiry as to the reason
for his arrest," id. at 503, detectives had replied they were "conducting an
investigation involving narcotics." Id. at 519. It was not until "approximately
fifteen minutes after [the] defendant had waived his Miranda rights and shortly
after [the] defendant [had] confessed to selling drugs to [the roommate] the day
before" that the defendant learned the investigation concerned the overdose
death. Diaz, 470 N.J. Super. at 524.
A-2238-19 30 We noted that "the decision to withhold information about the overdose
death . . . was part of a deliberate and designed investigative plan to induce
defendant to waive his right against self-incrimination." Ibid. We
acknowledged "that police are permitted, within limits, to use trickery or
deception in the course of a custodial interrogation." Ibid. However,
"[a]ffirmatively misleading an interrogee about the seriousness of the offense
for which he or she was taken into custody strikes at the heart of the waiver
decision." Id. at 525. We concluded that misleading the defendant "was done
pursuant to a planned investigative strategy to elicit incriminating statements
linking defendant to the overdose death before defendant became aware that
someone had died." Id. at 503. We held that "considering the totality of the
circumstances, the State failed to establish beyond a reasonable doubt that [the]
defendant knowingly waived his right against self-incrimination." Ibid.
Our standard of review of a trial court's Miranda ruling is well settled. We
give "deference to a trial court's factfindings, even factfindings based solely on
video or documentary evidence," State v. S.S., 229 N.J. 360, 379 (2017), "so
long as they are supported by sufficient credible evidence in the record."
O.D.A.-C., 250 N.J. at 425. "But we are not bound by the trial court's
A-2238-19 31 determination of the validity of the waiver, which is a legal, not a factual,
question." Ibid.
Here, we are satisfied that the judge's findings of fact are supported by
sufficient credible evidence in the record and accord them the deference our law
requires. We are also convinced that the judge's application of the totality -of-
the-circumstances standard to the facts of the case justified finding a valid
waiver and admitting defendant's statement at trial. During the two-and-a-half-
hour interrogation, defendant, who had prior experience with the criminal justice
system, was read his Miranda rights and waived his rights verbally and in
writing. Critically, prior to the waiver colloquy, notwithstanding the fact that
defendant had been arrested on "unrelated warrants," Acevedo informed
defendant that he was there to be questioned about the June 7, 2018 homicide.
There was no requirement for Acevedo to inform defendant that he was a suspect
in the homicide investigation and no requirement to inform defendant that he
would be charged with the homicide because no complaint-warrant or arrest
warrant had been issued for the charge. Additionally, there was no evidence
that the detectives threatened defendant, subjected him to mental exhaustion or
physical stress, ignored any requests for food, water or bathroom breaks, or
acted in any manner to overbear his will.
A-2238-19 32 Defendant relies on this court's decision in Sims to support his claim that
the judge misapplied both Nyhammer and Vincenty. However, because our
Supreme Court "expressly declined to expand the reach of the A.G.D./Vincenty
bright-line rules by requiring police to inform an interrogee of charges that have
not yet been filed, regardless of whether the interrogee was a suspect or whether
police had probable cause to apply for a complaint-warrant or arrest warrant,"
Cotto, 471 N.J. Super. at 517 (citing Sims, 250 N.J. at 215), defendant's
argument fails.
The gravamen of defendant's argument is that his Miranda waiver was not
knowing because the detectives failed to inform him that he was "under arrest
for the homicide, but instead deceived [him] into believing that he was only
under arrest for municipal court warrants." However, when the interrogation
was conducted, no complaint-warrant or arrest warrant had been issued for the
homicide. In fact, once defendant confessed, Acevedo told defendant that he
did not know what defendant would be charged with because he had "to talk to
attorneys" and "supervisors." Although there was no complaint-warrant or
arrest warrant issued for the homicide at the time of questioning, the purpose of
the questioning was never obscured or hidden from defendant. Thus, in the
absence of any evidence of bad faith on the part of the detectives, we reject
A-2238-19 33 defendant's assertion that his Miranda waiver was invalid. Unlike in Diaz, where
"the detectives deliberately and designedly misled defendant as to his true legal
status by providing a vague and incomplete answer to defendant's inquiry as to
the reason for his arrest," 470 N.J. Super. at 503, here, defendant was clearly
informed prior to eliciting his waiver that he was being questioned about the
homicide.
Defendant was arrested for outstanding municipal court warrants and
transported to the Prosecutor's Office for questioning regarding his role in the
homicide. He was told prior to questioning that he would be asked "certain
questions regarding a homicide that occurred," and the interrogating detectives
clearly identified themselves as members of the Homicide Task Force.
Defendant was administered his Miranda rights, acknowledged verbally and in
writing that he understood his rights, and knowingly, intelligently, and
voluntarily waived his rights. Throughout the interrogation, when defendant
repeatedly asked whether he was being charged with the homicide, the
detectives reiterated that he was only under arrest for the outstanding municipal
court warrants. Defendant was not charged with the homicide until after the
interrogation was completed. By then, defendant had confessed to the homicide.
Reviewing the record critically "and accounting for all relevant circumstances
A-2238-19 34 militating for and against suppression, we are satisfied that the manner in which
this custodial interrogation was conducted was lawful and does not offend
contemporary notions of justice and fair play." Cotto, 471 N.J. Super. at 523.
III.
In Point II, defendant argues that the judge "made a mistake in failing to
find or consider mitigating factor seven," N.J.S.A. 2C:44-1(b)(7) ("The
defendant has no history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the commission of the
present offense."). We disagree.
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute
[our] judgment for those of our sentencing courts.'" State v. Cuff, 239 N.J. 321,
347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence 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."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
A-2238-19 35 Furthermore, "[w]hile the sentence imposed must be a lawful one, the
[trial] court's decision to impose a sentence in accordance with the plea
agreement should be given great respect, since a 'presumption of
reasonableness . . . attaches to criminal sentences imposed on plea bargain
defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996) (quoting
State v. Sainz, 107 N.J. 283, 294 (1987)).
Here, based on the risk of re-offense, defendant's extensive prior criminal
record, and the heightened need for deterrence, the judge found aggravating
factors three, six, and nine. See N.J.S.A. 2C:44-1(a)(3), (6), and (9). In support,
the judge recounted defendant's prior criminal history at length, explaining:
As a juvenile [defendant had] four petitions and no adjudications. As an adult, [his] first adult arrest was on March 15[], 1996; [his] last arrest was on November 1[], 2015. [He had] been arrested [twelve] times . . . prior to the present offense, not including the present offense. [He had] five indictable convictions; some of them for rather serious crimes. That would be gun crimes.
The judge noted there was "no real evidence to detract from the reasonable
likelihood that [defendant] would offend again" because "he's been arrested
many times" and "convicted many times."
In mitigation, the judge found defendant's expression of remorse was
"sincere[]." However, the judge found the "aggravating factors outweigh[ed]
A-2238-19 36 the mitigating factors." Despite noting that the preponderance of aggravating
factors weighed in favor of "a custodial term towards the higher end of the
range," the judge sentenced defendant at the midpoint of the sentencing range
for a first-degree crime on count one, as amended, and to the mandatory
minimum term for a second-degree Graves Act offense on count two, in
accordance with the terms of the plea agreement. See N.J.S.A. 2C:43-6(a)(1) to
(2); N.J.S.A. 2C:43-6(c); see also State v. Natale, 184 N.J. 458, 488 (2005)
("Although no inflexible rule applies . . . when the aggravating factors
preponderate, sentences will tend toward the higher end of the [sentencing]
range.").
Defendant argues the judge should have found mitigating factor seven
because he "led a law-abiding life for eleven years before the present offense."
Given defendant's prior criminal history, we reject defendant's contention and
discern no abuse of discretion in the judge's sentencing decision. See State v.
Rice, 425 N.J. Super. 375, 382 (App. Div. 2012) ("Adult arrests that do not result
in convictions may be 'relevant to the character of the sentence . . . imposed.' A
sentencing court, therefore, does not abuse its discretion by refusing to find
mitigating factor seven based upon . . . charges that did not result in
A-2238-19 37 convictions." (first alteration in original) (citation omitted) (quoting State v.
Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991))).
Affirmed.
A-2238-19 38