STATE v FREBERT BONHOMETRE
________________________
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1490.
Kevin G. Byrnes, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Byrnes, on the briefs).
Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the briefs).
PER CURIAM
Defendant Frebert Bonhometre appeals his convictions for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3). The trial judge sentenced defendant to a twelve-year term in prison with an eighty-five-percent parole disqualifier on the armed-robbery conviction pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent one-year term on the evidence-tampering conviction; and a concurrent three-year term on the resisting-arrest conviction. We affirm the latter two convictions and sentences but reverse the armed-robbery conviction, suppress defendant's confession, and remand for a new trial on the armed-robbery charge.
I.
The trial evidence established that during the morning hours of November 27, 2006, defendant entered the First Atlantic Federal Credit Union (Credit Union) on Route 66 in the ShopRite shopping center in Neptune Township. He approached Matsuyo Hansford, who was working behind the counter as a bank teller. Defendant slid a note across the counter that read: "I have a gun, and give me some money . . . or you will be dead." Defendant's right hand was concealed in his pocket, where an object that appeared to be a gun pointed toward Hansford. Defendant quietly instructed her to "open the drawer," and as she moved to comply, defendant warned, "[D]on't touch any alarm." Hansford opened the drawer, and defendant leaned over the counter and grabbed some cash out of the drawer. Taking the note with him, he turned around and walked out of the bank. Hansford then activated the alarm and shouted to her manager, Patricia Ippolito.
Ippolito ran to the front door to see the robber and observed a black male walking towards a vehicle. He was approximately 5'10" and was wearing a baseball cap, a long-sleeved, white-striped flannel shirt, and dark colored pants. Later identified as defendant, the man got into the driver's side of the vehicle and drove away. The vehicle was blue with scuff marks on the bumper and rear and had black tires and New York plates. Then Ippolito returned to the Credit Union and called the police. It was determined that a total of $1,741 had been stolen, broken down into "20s, tens and ones."
Officers arrived at the scene within minutes. Bank security provided the officers with footage that the surveillance system had captured during the robbery. Ippolito also provided them with descriptions of the suspect, his vehicle, and his direction of travel. These descriptions were conveyed through dispatch and, in response, Detective Kevin Devine headed to the Credit Union.
In the ShopRite parking lot, Devine observed a car that fit Ippolito's description: "a light blue small car, had some rust on it, some body work on it, with a New York license plate on it." A lookup on the vehicle revealed that it was registered to Maria Bonhometre from New York. Through "a Fort Monmouth sticker that was in the vehicle," Devine "checked with the FBI database and found that [defendant] had been stopped in that vehicle on Fort Monmouth." Then Devine went to the Credit Union to inform Detective Michael Dugan that he had found a car "that fit the description of the vehicle that was observed leaving the bank."
Detective Philip Seidle took Ippolito to the ShopRite parking lot to view the automobile, and she identified it as the vehicle that the suspect entered. The vehicle was towed to a Neptune Township garage, where it was secured. Then a search warrant was obtained and executed that same day. In the car, officers found a "checkbook for a Shawana Smith" containing checks and carbon copies of checks made out to defendant. Officers also discovered defendant's New York State driver's license and a Credit Union bank card.
The following day, November 28, 2006, Detective Captain Edward Swannack went looking for defendant near his home address and observed "someone who fit his description." Believing that he had found the suspect, he called for backup, and Seidle and Detective Damico responded. When defendant noticed the detectives, a foot pursuit ensued during which defendant started pulling cash from his pocket and throwing it to the ground. Seidle continued to order defendant to "stop, stop" until eventually he caught up with defendant and knocked him to the ground. There was a brief struggle, but with the aid of Swannack and Damico, Seidle was able to control defendant and handcuff him. The police recovered $688.85 of the money that defendant had thrown away during the foot pursuit but were unable to determine if it was part of the money stolen from the Credit Union.[1]
The officers took defendant back to headquarters where he participated in a videotaped interview with Dugan and Detective Pamela Ricciardi. The tape was played to the jury at defendant's trial, and the jury was provided with a transcript of the video as a guide. The video shows defendant waiving his Miranda[2] rights and confessing to the armed robbery.
Additionally, defendant told the detectives that he had been using excessive amounts of cocaine and had been staying in a crack house, where he purchased cocaine on "credit." He robbed the Credit Union to repay the dealers' loan at the suggestion of the dealers because they threatened him if he did not do as they wished. He also explained that he was high and did not actually have a gun during the robbery.
At trial, defendant moved to suppress his confession, and the judge conducted a Miranda hearing, at the conclusion of which he denied defendant's motion. Defendant thereafter asserted duress as a defense to the armed-robbery charge. Nevertheless, the jury found defendant guilty of armed robbery and the two related charges. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] HAD VOLUNTARILY AND KNOWINGLY WAIVED HIS [MIRANDA] RIGHTS.[[3]]
POINT II - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT PRECLUDED THE JURY FROM CONSIDERING THE AFFIRMATIVE DEFENSE TO ARMED ROBBERY (Not Raised Below).
POINT III - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE (Not Raised Below).
POINT IV - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER USE OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Not Raised Below).
POINT V - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT ON SUMMATION (Not Raised Below).
POINT VI - [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS PROPERLY ON THE LAW OF ATTEMPT NOTWITHSTANDING THE FACT THAT AN ATTEMPT WAS AN ESSENTIAL ELEMENT OF THE CRIME OF RESISTING ARREST (Not Raised Below).
POINT VII - THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
II.
Defendant argues that his confession should have been excluded at trial because the State failed to prove beyond a reasonable doubt that he knowingly and voluntarily waived his Miranda rights. He alleges that he invoked his right to counsel, but the detectives did not cease their interrogation as required by State v. Kennedy, 97 N.J. 278, 285 (1984).
Prior to any custodial interrogation, an accused must be advised of his rights to remain silent and to have an attorney present during questioning and, "[o]nce an accused invokes the right to counsel, that right must be scrupulously honored." State v. Chew, 150 N.J. 30, 61 (1997) (internal quotation marks omitted), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). If a defendant invokes his right to counsel, all questioning must terminate until counsel is made available, unless the accused himself initiates further dialogue about the crime. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981). Because the right to counsel is so fundamental, an equivocal request for an attorney is interpreted in the light most favorable to the defendant. State v. Wright, 97 N.J. 113, 119 (1984). Also,
[w]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.
[State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980) (internal quotation marks omitted).]
In order to secure admission of a statement into evidence, the State must prove beyond a reasonable doubt that it was voluntary. State v. Bey (Bey II), 112 N.J. 123, 134 (1988).
The dialogue on which defendant relies to assert that he invoked his right to counsel follows:[4]
[Defendant]: If I do get on with this [statement], how much time am I facing?
[Dugan]: Frebert, I don't know, and that is not something we can even––we can––I really don't know.
[Ricciardi]: Right.
[Dugan]: Okay.
[Ricciardi]: I can't––
[Dugan]: (Inaudible).
[Ricciardi]: We are not––we are not even allowed to say that to you, Frebert,––
[Defendant]: I know––
[Ricciardi]: 'Cause we're not attorneys.
[Defendant]: I know, but––
[Dugan]: You've got to make it better for yourself now.
[Defendant]: I––I guess I need to talk to an–– [(Emphasis added.)]
[Ricciardi, interrupting defendant]: Let me put it to you––
[Dugan, simultaneously and loudly interrupting defendant]: Listen––Listen Frebert, let me say this to you, okay. You went to the First Atlantic Bank on the 22nd and cashed a check, okay. You took money out on the 22nd of the First Atlantic Bank, okay.
[Defendant]: (Inaudible).
Thus, no definitive request for an attorney is audible on the videotape. Dugan continued interrogating defendant:
[Dugan]: You went on the 22nd to a teller, an Asian teller and made a transaction, okay.
[Defendant]: (Inaudible).
[Dugan]: You went back there––
[Defendant]: On the 22nd?
[Dugan]: On the 22nd, okay. We have you––
[Defendant]: 22nd of November?
[Dugan]: Yeah, we know you went in there on the 22nd, okay. You made a transaction. Monday. Frebert, look at me for a second.
[Defendant]: Wait, wait, wait.
[Dugan]: I'm going to explain it to you because, let me explain the whole picture to you. Monday you go back to get money to the same teller. She recognizes you from the 22nd. You have already been to that bank. When you go in there Monday, Frebert, you go to the same teller. You ask her to give you money, isn't that right? You ask her for money.
[Defendant]: (Inaudible).
[Dugan]: Yes.
[Defendant]: Can you show me that again?
[Dugan]: Yes, I can show you that, Frebert.
Then defendant apparently asked to see some of the photos in an evidence folder on the table. By this time, more than a minute had elapsed since defendant said, "I need to talk to an––." As Dugan reached for the evidence folder, Ricciardi interrupted him and said:
[Ricciardi]: I want to clear something up.
[Defendant]: Okay.
[Ricciardi]: You just said before that you want to speak to your attorney. Is that what you want to do or do you want to retract that statement and see the evidence that we have because I'm willing to show it to you? But if that's what you are telling me, then we have to honor that, okay. If you are saying to us that's not what you want, that you want to continue with this statement and continue looking at the evidence that we have, because I am more than willing to show it to you, but if you, you need to tell us that. You tell me. We can–– [(Emphasis added.)]
[Defendant]: (inaudible) I will.
[Dugan]: We are trying to help you out here, Frebert. We're trying to help you out.
[Ricciardi]: Right. So you tell me.
[Defendant]: I can see you guys are trying to help me.
Defendant advised the detectives, "I understand everything you guys said" and "I understand you completely." Ricciardi later asked, "Do you want to continue?" Defendant responded, "Yeah, show me the pictures from Monday and the 22nd."
At the Miranda hearing, Dugan testified that he had not heard defendant request counsel and believed defendant wanted to speak to him. Ricciardi also testified at the Miranda hearing explaining that she was unsure whether defendant asked for his attorney:
At that time I had looked over at [Dugan] to see if––if he had heard what I thought I had heard and he didn't respond to me in that way at all. So I just asked him out of––you know, out of respect for his rights to see if that is, in fact, what he had said.
At the conclusion of the Miranda hearing, the judge found that defendant responded at one point with "'I guess I need to talk.'" "[T]hen very quickly [Ricciardi] sa[id], 'Let me tell you[,]' [a]nd Dugan continue[d] on, asking questions about his going to the bank on the 22[nd]." The judge then quoted the colloquy by Ricciardi questioning defendant as to his request to speak to his attorney. The judge pointed out that defendant never invoked the right to counsel after Ricciardi's questioning. He concluded that State v. Hartley, 103 N.J. 252, 256 (1986), was not triggered because defendant's alleged statement about counsel was ambiguous, that Dugan did not hear it, and Ricciardi's testimony that she was uncertain about the invocation was credible. He found that, although Ricciardi did not reiterate all of the Miranda warnings, she did again advise him of his right to counsel. Defendant was more interested in seeing the evidence and did not thereafter invoke his rights to remain silent or talk to counsel. He found that "[n]either one of the officers knew what this defendant had to say." Further, he found "that Dugan didn't hear at all; and that as soon as [Ricciardi] realized it, she did question him and did get his agreement to continue." He then held that defendant had voluntarily and knowingly waived his Miranda rights.
We recognize that a trial judge's fact-findings "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008); see also State v. Chun, 194 N.J. 54, 88-89 ("We will therefore limit our review of those findings and recommendations to a consideration of whether they are supported by sufficient credible evidence in the record . . . ."), cert. denied, 555 U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Arthur, 184 N.J. 307, 320 (2005) ("An appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record."); In re Taylor, 158 N.J. 644, 656 (1999) (noting that an "appellate court may not engage in an independent assessment of the evidence as if it were the court of first instance" (internal quotation marks omitted)).
Consequently, "our appellate function is a limited one: we do not disturb the factual findings . . . of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Additionally, the availability of a videotape does not extinguish the appellate deference owed to a trial court's factual findings. State v. Elders, 192 N.J. 224, 244 (2007). Indeed, the trial court "ha[s] the benefit not only of viewing the videotape, but also of observing the testimony of witnesses." Id. at 245 (citing State v. Chapman, 332 N.J. Super. 452, 459-60 (App. Div. 2000)).
The Elders Court concluded that where a video camera is in a fixed position and cannot record all of the events of a roadside stop and highway noise prevented the tape from capturing all of the conversations, we were required to defer to the judge's fact-findings based on the videotape and the officers' testimony. Ibid. There, the judge had determined that the officers did not have a reasonable, articulable suspicion to justify a search, but we concluded otherwise. Id. at 235-37. The Court reminded us that "[t]he motion judge was entitled to draw inferences from the evidence and make factual findings based on his 'feel of the case,' and those findings were entitled to deference unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention." Id. at 245.
This same standard of review applies to a custodial recording of an interrogation. State v. W.B., 205 N.J. 588, 606 n.9 (2011) (in the context of a videotaped interrogation, noting that "Elders held that the review of a videotape of events subject to the trial court's determinations of credibility and fact[-]finding does not affect the appellate scope of review").
Although we must defer to the judge's fact-findings, we owe no deference to his application of law to those facts. State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the question is whether law enforcement scrupulously honored defendant's right to counsel. Chew, supra, 150 N.J. at 61. Where the State fails to scrupulously honor the invocation of a suspect's rights, that failure "renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation [and] there can be no question of waiver." Hartley, supra, 103 N.J. at 261.
Rights may be asserted "in any manner, at any time." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. As we mentioned initially, even an ambiguous invocation of the right to counsel requires that questioning cease. Wright, supra, 97 N.J. at 119-20; see also State v. Bey (Bey I), 112 N.J. 45, 64-65 (1988) (finding that "a request to terminate an interrogation must be honored however ambiguous" (internal quotation marks omitted)); State v. Burno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008) (noting same standard for right to remain silent). Further, any equivocal invocation must be construed in a light most favorable to the defendant. Wright, supra, 97 N.J. at 119. "If the police are reasonably uncertain whether the person is asserting the right to [counsel], they may only ask questions directed to resolving that uncertainty." Burno-Taylor, supra, 400 N.J. Super. at 590 (emphasis added); accord Wright, supra, 97 N.J. at 120.
Here, in finding that defendant's alleged statement about counsel was ambiguous, the judge was required to construe that statement in defendant's favor, Wright, supra, 97 N.J. at 119, and infer an invocation of the right to counsel, but he failed to do so. He simply found that the statement was ambiguous and then made fact-findings respecting the detectives' states of mind about the ambiguous invocation of counsel and whether defendant intended to assert his right to counsel. "The critical question, however, is not whether defendant intended to assert his right to [counsel] or whether the officers intended to mislead defendant into waiving his rights." Burno-Taylor, supra, 400 N.J. Super. at 605 (holding that "the credibility findings of the trial court do not circumscribe our determination of" whether the officers scrupulously honored an invocation of rights, id. at 606). Instead, the judge was required to determine "whether defendant's words or conduct could reasonably be viewed as an assertion of his right to [counsel]; if they could be, the officers were obligated to cease their questioning or limit their questions solely to clarify that issue." Id. at 605-06. We are satisfied that defendant's words, taken in context, can reasonably be construed to invoke his right to counsel.
The judge also did not consider whether Ricciardi immediately ceased questioning, and caused Dugan to immediately cease questioning, after she heard an ambiguous statement from defendant that caused her to question whether he had invoked his right to counsel, as required by Fussell, supra, 174 N.J. Super. at 21. Instead, she allowed Dugan to continue the interrogation for more than a minute, and then she pressed defendant to retract his invocation without giving him an opportunity to clarify whether he had invoked his right to counsel in the first place. The judge made no fact-findings in this respect, although the evidence before him established unequivocally that Ricciardi failed to comply with Fussell.
Ricciardi's effort to persuade defendant to retract that invocation was contrary to the State's duty to scrupulously honor a request for counsel. Chew, supra, 150 N.J. at 61. Instead, she should merely have inquired if she was correct in understanding that he had invoked his right to counsel. Fussell, supra, 174 N.J. Super. at 21. These deficiencies, after an ambiguous invocation, mandated suppression of defendant's confession.
Having determined that defendant's confession subsequent to the ambiguous invocation of his right to counsel was inadmissible, we still must determine whether its erroneous admission into evidence was harmless. State v. Pillar, 359 N.J. Super. 249, 275 (App. Div.), certif. denied, 177 N.J. 572 (2003). We are satisfied that it was not harmless because neither Hansford nor Ippolito could identify defendant as the perpetrator of the robbery. Without the confession, a reasonable jury could well have concluded that the State could not prove defendant's guilt beyond a reasonable doubt. Accordingly, the conviction for first-degree armed robbery is reversed, and the matter is remanded for a new trial on that charge, with instructions to delete all statements made by defendant after he stated, "I guess I need to talk to an––."
To the extent that defendant's arguments implicate his convictions or sentences on the remaining counts, we have concluded that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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[1] The bank had recorded numbers of five dollar bills included in the money that was stolen, but none of the bills that were recovered from defendant matched.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] This point was also raised in a supplemental brief filed after the remand proceedings.
[4] This is a combination of the State's and the court reporter's transcripts of defendant's video-recorded statement.
