STATE OF NEW JERSEY VS. ANTHONY BURKHALTER (14-04-0437, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3881-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY BURKHALTER,
Defendant-Appellant.
_____________________________
Submitted April 19, 2018 – Decided July 25, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
14-04-0437.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Caitlyn Kelly,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial of his motion to suppress his statement
to police pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
defendant entered a negotiated guilty plea to two counts of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3),1 and one
count of second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b), reserving his right to appeal the denial of his Miranda
motion. He was sentenced in accordance with the plea agreement
to an aggregate term of twenty-one years' imprisonment, with an
eighty-five percent period of parole ineligibility pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, defendant
was ordered to serve the special sentence of parole supervision
for life, N.J.S.A. 2C:43-6.4, and comply with the requirements of
Megan's Law, N.J.S.A. 2C:7-1 to -23.
On appeal, defendant raises the following single point for
our consideration:
POINT I
UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE
STATEMENT BY A SEMI-ILLITERATE AND
HOSPITALIZED DEFENDANT, HANDCUFFED TO HIS BED
AND NOT FEELING WELL AS A RESULT OF MULTIPLE
GUNSHOT WOUNDS, SHOULD HAVE BEEN SUPPRESSED
SINCE HE WAS INCAPABLE OF VOLUNTARILY WAIVING
HIS MIRANDA RIGHTS AND GIVING A STATEMENT TO
POLICE.
Having considered defendant's contention in light of the record
and the applicable legal standards, we affirm.
1
The charges pertained to two separate victims, K.M. and P.H.
2 A-3881-16T1
On January 14, 2014, Judge Robert C. Billmeier conducted a
N.J.R.E. 104(c) hearing, at which Trenton Police Officer Nelson
Cartagena and Mercer County Prosecutor's Office Detectives Anthony
Petracca and Matthew Norton testified for the State. Cartagena
and Petracca testified about defendant's December 11, 2012
statement given while hospitalized for near-fatal gunshot wounds,
which was the subject of the Miranda hearing and this appeal.
Norton testified about an earlier October 19, 2012 statement given
at Trenton police headquarters.2 The judge also reviewed the
December 11, 2012 recorded interview.
Petracca was assigned to investigate separate cases involving
defendant, who was both the suspect in three sexual assaults,
occurring on October 12, November 24, and November 27, 2012, and
the victim of a November 28, 2012 shooting. The October 12, 2012
sexual assault occurred in Trenton during a burglary at the home
of the victim, K.M. K.M. selected the photograph of defendant's
identical twin brother, Steven Burkhalter, out of a photo array
and identified him as her assailant. However, Steven Burkhalter
was incarcerated in Missouri at the time of the assault.
2
On appeal, defendant does not challenge the admissibility of
his October 19, 2012 statement.
3 A-3881-16T1
In a police interview conducted by Norton on October 19,
2012, in connection with the October 12, 2012 sexual assault of
K.M.,3 defendant did not provide any incriminating statements, but
acknowledged that he was known by the street name "Twin."
Thereafter, J.R., the victim of the November 24, 2012 sexual
assault, identified her assailant by the nickname "Twin."
Additionally, P.H., the victim of the November 27, 2012 sexual
assault that occurred during a burglary of her Hamilton home,
identified defendant as her assailant from a photo lineup.
In the November 28, 2012 shooting, defendant was shot four
times by two different assailants and suffered extensive internal
injuries, requiring emergency surgery. Following the surgery, on
December 4, 2012, Petracca went to interview defendant in his
hospital room at Capital Health System. However, due to his
medical condition and difficulty speaking with a suction tube
inserted in his mouth, defendant was only able to give Petracca
the street name of one of the shooters.
3
The recorded interview was conducted after Norton advised
defendant of his Miranda rights and obtained a written waiver of
his rights. During the administration of the rights, because
defendant advised Norton he could not read, Norton read the rights
as well as the waiver to defendant. The ensuing colloquy between
defendant and Norton also included Norton explaining in detail the
meaning of the word "coercion" to defendant.
4 A-3881-16T1
Petracca returned to the hospital to interview defendant on
December 6 and December 10, 2012. Although defendant's medical
condition was improving, Petracca refrained from interviewing
defendant on either date after inquiring with the nurse about
defendant's condition. Nevertheless, after Petracca left the
hospital on December 10, 2012, another Trenton Police Detective
charged defendant in a complaint-warrant with the sexual assault
of J.R. because defendant had expressed his intention to leave the
hospital against medical advice.4
Cartagena testified that on December 11, 2012, the day after
defendant was charged, he was assigned to defendant's hospital
room to guard him while he was in police custody. That day,
Cartagena observed defendant for approximately eight hours, during
which defendant watched television, talked, and otherwise behaved
normally, despite being handcuffed to the bed. At defendant's
request, Cartagena telephoned Petracca to advise him that
defendant wished to speak with him. As a result, Petracca arrived
at the hospital some time before 3:30 p.m. However, before
speaking with defendant, Petracca talked with defendant's nurse
to get an update on his medical condition, as he had in the past.
4
In its opinion, the trial court noted that a December 10, 2012
progress note from defendant's hospital records indicated that
defendant "had poor thought organization and detailed recall of
events."
5 A-3881-16T1
Petracca inquired whether the "influence of a
medication . . . would affect [defendant's] ability to think [or]
make decisions," and confirmed that he would not be interrupting
any planned treatment for defendant. After receiving medical
clearance, Petracca found defendant's overall condition
"substantially" improved and noted "[h]e was no longer attached
to devices to assist his breathing[,] [h]e was no longer draining
saliva from his mouth," and "[h]e was also actually out of the
bed . . . sitting in one of those hospital chairs." Over the next
two hours, Petracca "continuous[ly]" recorded his interview with
defendant utilizing a "portable recorder that digitally records
audio onto a hard drive," which he then "downloaded . . . to a
CD."
Initially, the following exchange occurred between defendant
and Petracca:
DETECTIVE PETRACCA: How are you
doing? . . . You doing okay?
[DEFENDANT]: I'm getting better.
DETECTIVE PETRACCA: Good. You look a little
better. . . . Do you know what's going on or
what?
[DEFENDANT]: No.
. . .
DETECTIVE PETRACCA: . . . All right. Before
we get started, I've got to go over a couple
6 A-3881-16T1
things with you. And I know that you've
probably been through this process before.
But before we get started, how are you
feeling?
[DEFENDANT]: Not good.
DETECTIVE PETRACCA: Not good? What's
bothering you?
[DEFENDANT]: (Indiscernible).
DETECTIVE PETRACCA: Well, I'll talk to you
about that, but I just want to make sure first
before we start talking that your head is
clear, that you understand what I'm saying,
and that you're okay, because if you're not
healthy[,] I don't want to be talking to you
if you're not feeling well. So, are you all
right?
[DEFENDANT]: Yes.
DETECTIVE PETRACCA: Okay. . . . I want to go
over some stuff. You just need to listen. If
you have any questions you can ask me, and
then we'll work from there. All right. The
first thing I've got to do with you is read
you your rights [so that] before we talk you
understand what they are. All right? Did you
talk to you[r] mom today?
[DEFENDANT]: (Indiscernible).
DETECTIVE PETRACCA: Yeah. [S]he called me
last night.
[DEFENDANT]: Am I going to jail?
DETECTIVE PETRACCA: I'm going to talk [about]
all of that. We'll talk about it. Let me
just get through all this first. Do you read
and write English?
[DEFENDANT]: I read a little bit.
7 A-3881-16T1
DETECTIVE PETRACCA: . . . All right. Then
I'll read you everything so that you won't
have to worry about it.
Then, utilizing the Uniform Mercer County Rights and Waiver
of Rights Forms, Petracca read aloud and reviewed with defendant
his Miranda rights as well as the waiver of rights. After reading
the waiver of rights form, Petracca explained to defendant,
This just basically states that you are
willing to talk to me right now. Okay? I am
not forcing you. I'm not pressuring you. I'm
not holding something over your head saying
you'd better talk to me or else. Okay? And
actually, you had the officer that was here
today call me earlier, is that correct? Okay.
So, you can read that and sign there. And
remember, . . . if you decide you don't want
to talk to me at any point in time you can
say, Detective, I don't want to talk to you
anymore, and we'll be done.
Defendant signed the forms, acknowledging his understanding of his
rights and of his agreement to waive his rights and answer
questions without a lawyer present. Defendant also acknowledged
on the form that "no promises or threats" were made and that "no
pressure or coercion of any kind" was used against him.
Petracca also reviewed with defendant and read aloud the
"Arrest Warrant Notice Form," informing defendant that the day
before, he had been charged with sexual assault, and bail in the
amount of "$100,000 with no 10%" was imposed. Defendant questioned
Petracca about the bail and specifically inquired whether there
8 A-3881-16T1
was a ten percent option. Petracca responded there was "[n]o ten
percent" option and explained that "a lot of people . . . use a
bail bondsman" in order to pay a lower percentage, but confirmed
that "[a]t some point, . . . [defendant] may have to go to jail
if [he] can't post bail."
Defendant expressed frustration at his inability to make a
phone call while hospitalized to make arrangements to post bail.
Petracca agreed to contact defendant's mother and advise her about
the bail but refused "to break [the Trenton Police Department's]
rules" by allowing defendant to speak to his mother directly.5
Defendant also expressed concern about being incarcerated with the
individuals responsible for shooting him, to which Petracca
responded that if defendant "cooperate[d] with that investigation,
for [his] safety," those individuals would be incarcerated "in a
different jail."
Next, Petracca requested defendant's consent to obtain a DNA
sample for use in the investigation of the crimes for which
defendant was a suspect. To that end, Petracca read defendant his
rights in connection with providing his consent. Defendant
voluntarily agreed to provide two buccal swabs, and after Petracca
explained that the DNA evidence collected at the crime scenes
5
Cartagena confirmed that defendant was not permitted to make
phone calls or have visitors while he was in police custody.
9 A-3881-16T1
would incriminate him, defendant eventually made incriminating
statements about each of the three sexual assaults and
corresponding burglaries committed by himself and his associates.
At one point during the interview, when questioned about the
identity of the persons responsible for his near fatal shooting,
defendant stated, "I don't think I want to talk about that no
more." However, the interview continued with defendant telling
Petracca his concerns about being identified as a "snitch," his
fear for his safety and that of his family members, and his prior
burglary convictions in Missouri, for which he had been
incarcerated.
Following the hearing, on April 17, 2014, Judge Billmeier
issued a written decision denying defendant's motion to suppress
his statement to Petracca. The judge found the testimony of all
three witnesses credible, and described Cartagena's testimony as
"straight forward" and non-evasive, Petracca's as "forthright,"
and Norton's as "worthy of belief." Next, the judge determined
that all four of the Miranda factors were satisfied and concluded
that "[d]efendant made a proper waiver of his Fifth Amendment
rights, and provided a statement to Detective Petracca of his own
volition."
As to the first and second requirements, the judge found
"[d]efendant was properly advised of his rights by Detective
10 A-3881-16T1
Petracca," and, although "he has difficulty reading," defendant
reviewed and signed the forms after Petracca read them to him.
Turning to the voluntariness of the waiver, guided by State v.
Presha, 163 N.J. 304, 313 (2000), the judge concluded that
"[c]onsidering the totality of the facts and circumstances,"
defendant's waiver "was knowing, intelligent and voluntary" and
was not "the product of coercion." The judge found support for
his decision that "[d]efendant clearly understood what the
detective was inquiring about" and "was not suffering any
debilitating effects from the medications he was on, or the
injuries he suffered" in "the level of discussion" between
defendant and Petracca.
In that regard, the judge recounted that defendant was twenty-
three-and-one-half years old at the time of the interview, and,
although he "did not complete high school and was of limited
intelligence, he was able to have a two-hour conversation with
Detective Petracca and asked very appropriate questions when the
Detective went through his Miranda rights and waiver." The judge
also found the questioning "was not prolonged in nature and
certainly did not involve any 'physical punishment or mental
exhaustion,'" and defendant was "reminded by Detective Petracca
in explaining his Miranda rights, [that] he could tell him he
wanted to stop talking at any time." The judge found "further
11 A-3881-16T1
evidence of [d]efendant's soundness of mind from [d]efendant's
inquiry as to the DNA evidence the detective discussed."
Regarding "advice as to constitutional rights," the judge
recounted that "[d]efendant had been apprised of his Miranda rights
and waiver by Detective Norton" two months "prior to the waiver
at issue." According to the judge, "[d]efendant had properly
waived his constitutional rights" at that time and, during
questioning, had denied any involvement in the October 12, 2012
sexual assault. In addition to the interaction with Norton, the
judge found "[d]efendant was no neophyte to the criminal justice
system." The judge detailed defendant's "extensive experience
with the criminal justice system in the State of Missouri," where
he had "pled guilty to . . . five burglaries, and spent time in
state prison."
The judge expressly rejected defendant's argument that "his
hospitalization and poor health, his fear for his safety and the
safety of his mother, his lack of education, his mental limitations
and Detective Petracca's offer of DNA evidence existing," rendered
his waiver the product of coercion. Likewise, the judge rejected
defendant's assertion that "coercive techniques were used." The
judge explained:
Although defendant was in the hospital, feared
for his safety, and lacked certain educational
skills, it is clear to this court [d]efendant
12 A-3881-16T1
asked Detective Petracca to come visit him at
the hospital in order to discuss the charges
against him. Detective Petracca informed
[d]efendant if he no longer wanted to talk to
the Detective at any time, he could stop.
Detective Petracca was honest and forthcoming
with [d]efendant when asked questions and made
no attempt to trick, intimidate, force or
confuse [d]efendant into making a statement.
Further, this court does not find the
[D]etective's offer to aid [d]efendant in
finding a way to post bail was made in exchange
for incriminating answers to the [D]etective's
questions. On the contrary, this court finds
Detective Petracca offered to speak to
[d]efendant's mother and offered advice as to
the services of a bail bondsman prior to any
questioning or interrogation as to the sexual
assaults. Therefore, this court finds the
fourth factor of the Miranda analysis has been
satisfied.
Finally, the judge emphatically rejected defendant's argument
that "the admission of [d]efendant's statement [was] fundamentally
unfair" because "[d]efendant believed Detective Petracca was at
the hospital to discuss the matter in which [d]efendant was the
victim, and not the sexual assaults [d]efendant was charged with."
The judge determined that "a review of the record suggest[ed] just
the opposite," because it was defendant who "invited Detective
Petracca to the hospital to speak with him about the sexual assault
charges pending against him." The judge elaborated:
Most notably, [d]efendant [told]
Detective Petracca he [did] not want to talk
about his assailant and [did] not end the
conversation with the Detective when
questioned about the sexual assaults. This
13 A-3881-16T1
court finds it was [d]efendant who led the
conversation in the direction of the sexual
assaults[,] and as such, it is apparent to the
court [d]efendant had every intention of
discussing those charges with the Detective.
Additionally this court finds Detective
Petracca was clear on his intention to
question [d]efendant as to the sexual assault
charges[,] as right from the very start of the
interrogation, . . . the Detective informed
[d]efendant of his charges. Additionally, the
Detective informed [d]efendant, "[n]ow, I told
you, you got a sex assault charge outta
Trenton. They signed a complain[t] on you
yesterday . . . ." It is clear [from] this
exchange the Detective was not trying to hide
his intention in going to the hospital to
speak with [d]efendant.
The judge entered a memorializing order, and this appeal followed.
On appeal, defendant argues that "[a]n overall assessment of
the uncontested facts that [defendant] was recovering from life-
threatening injuries, was handcuffed to his bed, did not feel
well, was semi-literate, and suffered from learning and cognitive
difficulties" showed that "the State could not prove, beyond a
reasonable doubt, that [defendant] voluntarily and intelligently
waived his Miranda rights." Further, according to defendant,
"[s]ince [his] physical and mental limitations undermined the
voluntariness of the Miranda waiver, they inevitably undermined
the voluntariness of his statement," and "[t]he trial court ignored
the fact that the interrogation pertained to dual investigations."
We disagree.
14 A-3881-16T1
When reviewing a trial court's denial of a motion to suppress
a defendant's statement, we must "engage in a 'searching and
critical' review of the record." State v. Maltese, 222 N.J. 525,
543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)),
cert. denied, ___ U.S. ___, 136 S. Ct. 1187 (2016). We defer to
the trial court's findings supported by sufficient credible
evidence in the record, particularly when they are grounded in the
judge's feel of the case and ability to assess the witnesses'
demeanor and credibility. State v. Robinson, 200 N.J. 1, 15
(2009); State v. Elders, 192 N.J. 224, 243-44 (2007).
This standard of review applies even where the motion court's
"factfindings [are] based solely on video or documentary
evidence," such as recordings of custodial interrogations by the
police. State v. S.S., 229 N.J. 360, 379 (2017). We will not
reverse a motion court's findings of fact based on its review of
a recording of a custodial interrogation unless the findings are
clearly erroneous or mistaken. Id. at 380. However, we review
issues of law de novo. Ibid.; State v. Shaw, 213 N.J. 398, 411
(2012).
At a hearing challenging the admission of statements made
during a custodial interrogation, "the State must prove beyond a
reasonable doubt that a defendant's confession was voluntary and
was not made because the defendant's will was overborne." State
15 A-3881-16T1
v. Knight, 183 N.J. 449, 462 (2005). The State must also prove
"the defendant was advised of his rights and knowingly, voluntarily
and intelligently waived them." State v. W.B., 205 N.J. 588, 602
n.3 (2011). Further, the determination of whether the State has
satisfied its burden of proving beyond a reasonable doubt a
defendant's statement was voluntary requires "a court to assess
'the totality of the circumstances, including both the
characteristics of the defendant and the nature of the
interrogation.'" Hreha, 217 N.J. at 383 (quoting State v.
Galloway, 133 N.J. 631, 654 (1993)).
We must determine "whether, under the totality of
circumstances, the confession is 'the product of an essentially
free and unconstrained choice by its maker' or whether 'his will
has been overborne and his capacity for self-determination
critically impaired.'" State v. Pillar, 359 N.J. Super. 249, 271
(App. Div. 2003) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
225-26 (1973)). The "factors relevant to that analysis include
'the suspect's age, education and intelligence, advice concerning
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature, and whether
physical punishment and mental exhaustion were involved.'" Hreha,
217 N.J. at 383 (quoting Galloway, 133 N.J. at 654). The court
should also consider defendant's prior encounters with law
16 A-3881-16T1
enforcement and the period of time that elapsed between the
administration of Miranda warnings and the defendant's confession.
Ibid.Applying these principles and deferring to the judge's
factual findings, which are amply supported by the record, we are
satisfied that Judge Billmeier's denial of defendant's motion to
suppress his statement was proper. Based on the judge's assessment
of the totality of the circumstances, including the
characteristics of defendant and the nature of the interrogation,
the judge correctly determined that the State satisfied its burden
of proving beyond a reasonable doubt that defendant was advised
of his rights, knowingly, voluntarily and intelligently waived his
rights, and gave a voluntary statement. We reject defendant's
contrary arguments and affirm substantially for the reasons
expressed in Judge Billmeier's well-reasoned written decision.
Affirmed.
17 A-3881-16T1