HOWELL ASSOCIATES, LLC VS. ZONING BOARD OF ADJUSTMENT OF Â THE TOWNSHIP OF HOWELL(L-1368-14, MONMOUTH COUNTY AND STATEWIDE)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1510-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMIL B. FENNELL,
Defendant-Appellant.
___________________________________
Submitted September 13, 2016 – Decided March 9, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Accusation No. 14-08-0381.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Garima Joshi, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Emil B. Fennell contends the trial court should
have granted his Miranda1 motion to suppress two custodial
statements he made to Trenton police. After the court denied his
motion, defendant pleaded guilty to first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4a(1), of Shawn Marinnie. The State
dismissed the indicted charges of first-degree murder, N.J.S.A.
2C:11-3(a)(2), and related weapons offenses, and the court
sentenced defendant, consistent with the plea agreement, to a
twenty-year term, subject to the No Early Release Act, N.J.S.A.
2C:43-7.2. Defendant also challenges his sentence as excessive.
We affirm.
I.
On December 15, 2011, Marinnie was shot in the head while
standing on the 800 block of Stuyvesant Avenue in Trenton. Based
on the subsequent investigation, police charged defendant with the
crime and took him into custody on June 11, 2012. Mercer County
Prosecutor's Office Detective Gary Wasko, and Trenton Police
Detective Brian Egan and Sergeant Christopher Doyle interviewed
defendant the day of his arrest and the next day.
Egan began the first interview by giving defendant the
complaint. Egan told defendant that his bail was $800,000, and
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-1510-14T4
began to read the Miranda rights form, asking defendant to read
back each paragraph after Egan recited it. When Egan reached the
paragraph about the right to counsel, defendant invoked his right
in the following exchange2:
DETECTIVE EGAN: Okay. You can sign
here. Now, Emil, the second part of this form
is called the Waiver of Rights, and the same
thing, I'll read it to you and then you can
read it.
I have read the statement of my rights
and I understand what my rights are. I'm
willing to make a statement and answer
questions. I do not want a lawyer at this
time. I understand and know what I am doing.
No promises or threats have been made to me
and no pressure or coercion of any kind has
been used against me. That one word,
coercion, means that we're not forcing you []
to do anything. We're not trying to trick you
into talking to us. Could you read this
paragraph aloud?
MR. FENNELL: I've read this statement
of my rights and I understand what my rights
are. I am willing to make a statement and
answer questions. I do not want a lawyer at
this time, which I kind of do.
[(Emphasis added).]
2
There are discrepancies in the transcript of the June 11, 2012
interrogation. The record contains a transcript prepared for the
prosecution by a court reporter, prior to the October 3, 2013
motion hearing. There is also a transcript prepared by a court
reporter during the hearing, when the interrogation video was
played. Except as noted, we follow the transcript as prepared
during the hearing.
3 A-1510-14T4
Egan then confirmed that defendant was invoking his right to
counsel, and terminated the interrogation:
DETECTIVE EGAN: Do you -- you mentioned
that you kind of want an attorney. Do you
want to speak to an attorney first?
MR. FENNELL: Yeah.
DETECTIVE EGAN: Okay.
MR. FENNELL: You already said that I got
(indiscernible) --
DETECTIVE EGAN: All right. That's no
problem at all. What we'll do is, we'll
terminate this interview here. I'll take your
personal property, whatever you have, and put
you in a cell and you can go from there. Okay.
Defendant responded by questioning the detectives about what
would happen to him next.
MR. FENNELL: So how long --
DETECTIVE EGAN: I can't answer any
questions, Emil.
MR. FENNELL: Okay.
DETECTIVE EGAN: No. How long what?
MR. FENNELL: Would I be just waiting
around?
DETECTIVE EGAN: Well you're going to be
put in a cell and, you know, whatever.
DETECTIVE WASKO: (Indiscernible).
MR. FENNELL: Until I make bail or not?
DETECTIVE WASKO: Yeah. I mean if you
post bail today, you got $800,000 –
4 A-1510-14T4
Defendant then inquired about whether he could sign the
Miranda form and waive his right to counsel and to remain silent.
MR. FENNELL: (Indiscernible).
If I would sign that and talk to you all
about (indiscernible) that stuff anyway.
DETECTIVE WASKO: Well then we would have
had an interview and --
MR. FENNELL: All right, well, if the
government is going to interview me I want to
know what's going on like, I'm lost right now.
And if I sign I will not be able to still talk
to a lawyer or I won't be able to stop then?
Because the first one I signed said I can
(indiscernible), and then stop certain
questions, but the second one --
DETECTIVE WASKO: Here's what it boils
down to, Emil. I mean, you've been charged
with murder.
MR. FENNELL: Yeah, but I --
DETECTIVE WASKO: Hold on. You've been
charged with murder, okay.
MR. FENNELL: Okay.
DETECTIVE WASKO: And you decided that
you want an attorney before you talk to us
about the murder charge, you know, so
basically that's where we stand right now. So
the complaints are already there. It's -- the
Superior Court already signed it.
MR. FENNELL: All right. Well let's --
I'll talk to you all then, because I really
want to know what's going on. Let me sign
that, that second one.
5 A-1510-14T4
DETECTIVE WASKO: You don't want to talk
to an attorney first?
MR. FENNELL: There's no need to. I
didn't do anything. I'm not hiding anything,
anything, so I can talk to you all right?
Detective Wasko then left the room for about ten minutes. In
the meantime, Egan talked to defendant about what he studied at
school and his tattoos. When Wasko returned, they re-administered
the Miranda warnings and confirmed that defendant wanted to waive
his rights.
UNIDENTIFIED SPEAKER: Emil, is it true
that when we went over the forms the first
time and you requested a lawyer and then after
going over those forms the first time you then
changed your mind and told us you did not want
a lawyer, is that true?
MR. FENNELL: Yeah.
UNIDENTIFIED SPEAKER: Okay. So it's
true that you wanted to speak to us about this
and that's why we just redid the forms?
MR. FENNELL: Yeah.
UNIDENTIFIED SPEAKER: That was your
decision.
MR. FENNELL: My decision.
UNIDENTIFIED SPEAKER: Okay, sir.
DETECTIVE EGAN: So, do you still want
to talk to us about what you're under arrest
for without a lawyer, right now?
MR. FENNELL: Go over the charges again.
6 A-1510-14T4
DETECTIVE EGAN: Without a lawyer, right
now?
MR. FENNELL: Okay.
In the questioning that followed, defendant claimed he was
home the day of the homicide, but became aware of it. He stated
he knew of the victim, but denied interacting with him. Egan left
the room, and Wasko answered defendant's questions about bail, his
first appearance in court, and the appointment of counsel.
Then followed an exchange that defendant asserts amounted to
an invocation of the right to remain silent:
DETECTIVE WASKO: So they'll come talk
to you at the Workhouse, and we'll go from
there. That's what's going to happen.
MR. FENNELL: That's crazy. I'm being
charged with murder and I didn't do it. I
hope you all have got enough evidence to
charge me with this, though.
DETECTIVE WASKO: Well, obviously we do,
because we already have the complaint signed.
You already got your paper.
MR. FENNELL: All right.
DETECTIVE WASKO: I mean, is there -- is
there -- would you like to talk about it some
more, or are you done talking, or would you
like to explain to us your whereabouts[3], or
--
3
When reviewing the interrogation video, we clearly discern that
Wasko asked defendant if he wanted to "explain your whereabouts,"
although the transcript recorded it as "indiscernible."
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MR. FENNELL: There's nothing else to,
well, there's nothing else to talk about
because[4] I didn't do anything, so -- you know,
I just want one favor. Can I, like, since I'm
being -- since I'm . . . here[,] can I [ ] go
in[to] that phone and get my mother-in-law's
number?
DETECTIVE WASKO: Yeah. We'll be able
to do that. We'll be able to do that for you.
MR. FENNELL: All right. Can you all do
me one more favor?
DETECTIVE WASKO: What's that?
MR. FENNELL: A Black and Mild [cigar].
DETECTIVE WASKO: They might be able to
do that for you. I don't know if we have any.
We'll have to look.
[(Emphasis added).]
Egan returned to the interrogation room, and Wasko summarized
what he had told defendant regarding counsel, discovery,
defendant's request to access his phone, and his request for a
Black and Mild. Wasko then asked defendant if his summary was
accurate, and defendant said it was, without claiming that he had
invoked his right to silence.
Defendant received the cigar he requested and the officers
continued to question him. He described Marinnie's own criminal
4
This statement did not appear in either transcript of the June
11, 2012 interrogation; however, at the motion to suppress, both
parties stipulated that defendant stated, "There's nothing else
to, well, there's nothing else to talk about because I didn't do
anything."
8 A-1510-14T4
activity and claimed Marinnie had killed and robbed multiple
victims. Defendant then admitted that Marinnie had robbed him at
gunpoint, after which he heard that Marinnie was going to rob him
again and kill him. Defendant explained he killed Marinnie to
prevent him from doing so.
The next day, a Trenton police sergeant contacted Egan to
inform him that defendant wanted to speak to him again. Egan
administered a new set of Miranda warnings, and obtained
defendant's signed waiver of his rights. Defendant then confirmed
that after he returned from court, he had asked a guard to convey
his request to speak to Egan. Egan asked, "[W]hat is it that you
want to tell us?" Defendant answered, "Yesterday I withheld just
a little bit from you all." Defendant referred to a man known as
"Loco Pete." In the first interview, defendant said he had heard
of "Loco Pete," and he "probably chilled around him, but [he]
wasn't my boy or nothing like that." However, in the second
interview, defendant disclosed that Loco Pete gave him the gun
used to kill Marinnie, and directed him where to leave the gun
when he was done using it, so Loco Pete could retrieve it.
Defendant admitted that he lied to the officers the previous day
about how he obtained the gun.
Judge Thomas W. Sumners, Jr., denied defendant's motion in a
thorough fifteen-page opinion. He concluded that after defendant
9 A-1510-14T4
initially invoked his right to an attorney, he chose to waive that
right. Judge Sumners rejected defendant's argument that the police
failed to honor his initial assertion of rights. The officers had
concluded interrogation, and then engaged in a non-interrogative
exchange that defendant initiated about what would happen next.
The court rejected defendant's argument that the officers' answers
regarding bail and incarceration were coercive. The court noted
that defendant then expressed a desire to waive his rights, after
which the officers readministered Miranda warnings and affirmed
that defendant wished to answer questions.
The court also rejected defendant's argument that the police
refused to honor defendant's assertion of his right to remain
silent when he stated, "there's nothing else to talk about because
I didn't do anything . . . ." The court recognized that, taken
in isolation, the statement could be so interpreted. But, viewed
in context, it amounted to another denial of guilt, and not a
request to stop the interrogation. The court found that "as the
entirety of the videotape makes clear, the request made by
defendant does not indicate finality of his participation in
questioning but rather 'a reflective pause to collect his thoughts,
consider his options, and attempt to keep his emotions in check
as he confronted the enormity of what he had done.'" (quoting
State v. Diaz-Bridges, 208 N.J. 544, 570 (2011).
10 A-1510-14T4
As for the June 12 statement, the court rejected defendant's
argument that it should be suppressed based on the "the fruit of
the poisonous tree doctrine" set forth in Wong Sun v. United
States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16, 9 L. Ed. 2d 441,
453 (1963), since the court found no predicate violation of
defendant's rights.
II.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE ERRED IN FAILING TO SUPPRESS
THE DEFENDANT'S STATEMENTS WHICH WERE OBTAINED
IN VIOLATION OF HIS RIGHTS. U.S. CONST.
AMEND. V, VI, XIV; N.J. CONST. ART. 1, PARAS.
1, 9, 10.
A. Law Enforcement Failed To Scrupulously
Honor Defendant's Invocation Of His Right
To Counsel.
B. The Waiver Of Rights Was Not Made
Knowingly Or Voluntarily.
C. Law Enforcement Failed To Scrupulously
Honor Defendant's Invocation Of His Right
To Silence.
D. The June 12 Statement Must Be Suppressed
As It was Directly Derived From The
Tainted June 11 Statement.
POINT II
THE DEFENDANT'S MAXIMUM SENTENCE OF TWENTY
YEARS WAS MANIFESTLY EXCESSIVE AND UNDULY
PUNITIVE PARTICULARLY AS APPLIED TO THE
DEFENDANT AT THE TIME HE STOOD BEFORE THE
COURT.
11 A-1510-14T4
III.
As he did before the trial court, defendant contends that
during the June 11 interrogation, the officers violated his rights
by questioning him after he invoked his right to counsel and later
after he invoked his right to remain silent. Although he initiated
the June 12 interrogation, he argues it was tainted, because it
derived from the unlawful questioning the day before.
We must "engage in a 'searching and critical' review of the
record" when reviewing the trial court's denial of a Miranda
motion. State v. Maltese, 222 N.J. 525, 543 (2015) (quoting State
v. Hreha, 217 N.J. 368, 382 (2014)), cert. denied, ___ U.S. ___,
136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016). We defer to the trial
court's fact findings, if supported by sufficient credible
evidence, Hreha, supra, 217 N.J. at 382, but we review legal
questions de novo. State v. Rockford, 213 N.J. 424, 440 (2013).
With that standard of review in mind, we turn first to the
June 11 interrogation.
We affirm the trial court's order, substantially for the
reasons set forth in Judge Sumner's cogent opinion. We add the
following comments with respect to defendant's argument that he
sought to terminate the interrogation and invoke his right to
remain silent when he said "there's nothing else to talk about[.]"
12 A-1510-14T4
We are mindful that "[o]nce warnings have been given, the
subsequent procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning, that he [or
she] wishes to remain silent, the interrogation must cease."
Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 1627,
16 L. Ed. 2d 694, 723 (1966).
As in this case, a question may arise as to whether a
defendant has actually expressed the desire to remain silent. "[A]
request to terminate an interrogation must be honored 'however
ambiguous.'" State v. Bey, 112 N.J. 45, 64-65 (1988) (quoting
State v. Kennedy, 97 N.J. 278, 288 (1984)). If a defendant's
request is unclear, an officer may ask the defendant to clarify
his or her meaning. State v. Alston, 204 N.J. 614, 623 (2011).
A defendant is not required to speak with "the utmost legal
precision." Bey, supra, 112 N.J. at 65. Nor do we expect officers
to do so, since they often "converse in vernacular or use
colloquial expressions[.]" Alston, supra, 204 N.J. at 627. We
also recognize that "a minute parsing of the words used might
yield an inaccurate picture of what was meant." Ibid. Therefore,
a court must use "a totality of the circumstances approach that
focuses on the reasonable interpretation of [a] defendant's words
and behaviors." Diaz-Bridges, supra, 208 N.J. at 564.
13 A-1510-14T4
Our analysis begins with Wasko's unfinished question, "is
there -- would you like to talk about it some more, or are you
done talking, or would you like to explain to us your whereabouts,
or -- [.]" Fairly interpreted, Wasko was not asking defendant
whether he wanted suddenly to invoke his right to remain silent.
Rather, he was asking whether defendant had anything to add to
what he had already said, particularly with regard to where he was
at the time of the fatal shooting. Defendant's response — "there's
nothing else to talk about because I didn't do anything" — was
simply another way of saying that he had no further details to
offer, and he was innocent.
Defendant's statement was unlike that of the defendant in
Christopher v. Florida, 824 F.2d 836, 840 (11th Cir. 1987), cert.
denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988),
who invoked his right to remain silent when he affirmatively and
repeatedly stated, "I got nothing else to say[,]" and also demanded
that he be taken into custody. (Emphasis omitted). Nor did
defendant say at the outset of either interrogation, "I don't want
to talk about it," as the defendant did in State v. Bishop, 621
P.2d 1196, 1198 (Or. Ct. App. 1980). See also State v. Johnson,
120 N.J. 263, 281 (1990) (discussing Christopher and Bishop).
Here, defendant did not demand that he be taken to a cell, like
the defendant in Christopher. Nor did he say he was unwilling to
14 A-1510-14T4
talk, using the first person "I," as the defendants did in
Christopher and Bishop. Instead, he commented on whether further
discussion would be productive. See State v. Williams, 3d Dist.
Allen No. 1-96-24, 1996 Ohio App. LEXIS 5297, at *10-12 (Nov. 12,
1996) (holding that the defendant did not invoke his right to
remain silent when he said, "I don't know what else to say. You
guys assume I did it."); cf. United States v. Adams, 820 F.3d 317,
322-24 (8th Cir. 2016) (defendant's statement — "Nah, I don't want
to talk, man. I mean, I" — followed immediately by further
conversation with officer did not ambiguously invoke his right to
remain silent). In sum, we discern no error in the trial court's
determination that defendant did not invoke his right to remain
silent.
As there was no violation of defendant's rights during the
June 11 interrogation, defendant's contention that the June 12
interrogation was "fruit of the poisonous tree" must fail. In all
other respects, defendant's rights were honored during the second
interrogation, which defendant initiated.
Finally, we discern no merit in defendant's challenge to his
sentence. The court's findings of fact regarding aggravating and
mitigating factors were supported by evidence in the record; the
court correctly applied the sentencing guidelines; and the court
did not abuse its discretion in imposing its sentence. See State
15 A-1510-14T4
v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J.
334, 364-66 (1984).
Affirmed.
16 A-1510-14T4