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STATE OF NEW JERSEY VS. ANTWON T. SMITHÂ (14-12-1384, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-3850-15T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    ANTWON T. SMITH,
    Defendant-Appellant.
    _____________________________
    Submitted July 25, 2017 – Decided August 4, 2017
    Before Judges Reisner and Suter.
    On appeal from the Superior Court               of New
    Jersey, Law Division, Middlesex                 County,
    Indictment No. 14-12-1384.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Theresa Yvette Kyles, Assistant
    Deputy Public Defender, of counsel and on the
    brief).
    Andrew C. Carey, Middlesex County Prosecutor,
    attorney for respondent (Patrick F. Galdieri,
    II, Assistant Prosecutor, of counsel and on
    the brief).
    PER CURIAM
    Following the denial of his suppression motion, defendant
    Antwon T. Smith pled guilty to first-degree murder, N.J.S.A. 2C:11-
    3(a)(1), and was sentenced, per the plea agreement, to a prison
    term   of   thirty    years   without       parole.   He   appeals    from   the
    conviction, presenting the following point of argument concerning
    the suppression issue:
    POINT I
    BECAUSE SMITH'S FIFTH-AMENDMENT RIGHTS WERE
    VIOLATED BY THE FAILURE OF THE POLICE TO
    TERMINATE QUESTIONING, OR TO CLARIFY SMITH'S
    INTENT, WHEN HE AT LEAST AMBIGUOUSLY ASSERTED
    HIS RIGHT TO SILENCE, THE ORDER DENYING
    SMITH'S MOTION TO SUPPRESS HIS STATEMENT
    SHOULD BE REVERSED. U.S. CONST., AMENDS. V,
    XIV.
    After reviewing the record, including the DVD of defendant's
    statement to the police, we affirm substantially for the reasons
    stated by Judge Barry A. Weisberg in his oral opinion issued on
    September 24, 2015, following the Miranda1 hearing.                  We add the
    following brief discussion.
    The case involved the fatal shooting of Robert Bailey in
    Carteret.    The shooting was captured by a security camera, and
    defendant was one of the individuals in the security video.
    Defendant, who was twenty-eight years old at the time, was arrested
    the day after the shooting, based on an outstanding municipal
    warrant.     While he was being questioned about the shooting,
    1
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
    2                               A-3850-15T2
    defendant was shown two still photos taken from the video.                   He
    admitted that he was in the first photo, but claimed he did not
    know the other individuals in the photo.             The police then showed
    him a second photo, describing it to defendant as: "This is you,
    this is a gun.       All right?      You shot this guy in the back of the
    head.   It's on camera."       He then asked the police to give him his
    cell phone so that he could speak with his mother.
    Defendant repeated that request multiple times during the
    interview, assuring the police that they could put the cell phone
    on speaker mode so they could hear the conversation he would have
    with his mother.      At no point did defendant refuse to speak to the
    police unless he could speak to his mother first.                  Nor did he
    indicate      that   he   wanted    her   advice.    Eventually,    defendant
    explained that he just wanted to tell his mother that he loved her
    and that, as he put it, he had "fucked up."              In other words, he
    wanted his mother to hear the bad news from him before she heard
    it from the police.
    As the Supreme Court has recently reminded us, our review of
    the   trial    judge's    factual    findings   is   deferential,   and   that
    deference includes trial court findings based on the video of a
    police interrogation.        State v. S.S., __ N.J. __, __ (2017) (slip
    op. at 16-17) (overruling State v. Diaz-Bridges, 
    208 N.J. 544
    , 566
    (2012), to the extent that it adopted a de novo standard of
    3                           A-3850-15T2
    appellate   review).    In   S.S.,   the    Court   also   reiterated   the
    principle that even an ambiguous assertion of the right to remain
    silent requires that the police stop questioning the suspect until
    the ambiguity is resolved.
    In that light, "[a]ny words or conduct that
    reasonably appear to be inconsistent with
    defendant's willingness to discuss his case
    with the police are tantamount to an
    invocation of the privilege against self-
    incrimination." In those circumstances in
    which the suspect's statement is susceptible
    to two different meanings, the interrogating
    officer must cease questioning and "inquire
    of   the   suspect   as   to   the   correct
    interpretation."
    [Id. at __ (slip op. at 19) (quoting State v.
    Bey II, 
    112 N.J. 123
    , 136 (1988)).]
    Thus, the Court agreed with the trial court's determination
    that S.S. invoked his right to remain silent when he told the
    police, "that's all I got to say.          That's it."     Id. at __ (slip
    op. at 21).    On the other hand, if a suspect's statement cannot
    fairly be construed as being even an ambiguous invocation of the
    right to remain silent, the interrogation need not stop.             Diaz-
    
    Bridges, supra
    , 208 N.J. at 566-67.           S.S. did not affect that
    portion of the holding in Diaz-Bridges.          Thus, merely asking to
    speak to a parent is not necessarily an invocation of the right
    to silence.    Diaz-
    Bridges, supra
    , 208 N.J. at       567.
    4                             A-3850-15T2
    On this record, we find no basis to second-guess Judge
    Weisberg's findings that the defendant's confession was voluntary,
    his will was not overborne, and his requests to speak with his
    mother were not an expression of his wish to stop answering
    questions.   Similarly to the defendant in   Diaz-Bridges, defendant
    here was asking to speak to his mother so that he could tell her
    he loved her and let her know that he had done something terrible.
    See Diaz-
    Bridges, supra
    , 208 N.J. at 570. Unlike State v. Maltese,
    
    222 N.J. 525
    , 546 (2015), defendant did not indicate that he wanted
    to get his mother's advice or that he wanted to stop talking to
    the police until he obtained her advice.       We find no basis to
    disturb the trial court's conclusion that, under the totality of
    the circumstances, defendant was not invoking his right to silence.
    As a result, the police did not violate defendant's Miranda rights
    when they continued to question him.
    Affirmed.
    5                           A-3850-15T2
    

Document Info

Docket Number: A-3850-15T2

Filed Date: 8/4/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021