STATE OF NEW JERSEY VS. ASA T. JONES (14-05-0503, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5141-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ASA T. JONES, a/k/a ASA FERGUSON,
and ASA T. FERGUSON
Defendant-Appellant.
______________________________________
Submitted September 18, 2018 – Decided October 2, 2018
Before Judges Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 14-05-
0503.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia H. Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah E. Elsasser, Deputy Attorney
General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from his conviction for murder, N.J.S.A. 2C:11-
3(a)(1)(2), and certain persons not to have weapons, N.J.S.A. 2C:39-7(a).
Defendant contends his statement to the police should have been suppressed
because he was tricked and coerced into waiving his Miranda1 rights. In
addition, defendant argues his conviction should be reversed because the
prosecutor misstated the definition of recklessness to the jury. We affirm.
Prior to trial, defendant moved to suppress his statement to the police,
arguing it was not voluntary and intelligent. The judge conducted an evidentiary
hearing on defendant's motion. The suppression hearing included a videotaped
recording of defendant's interactions with the police and the testimony of one of
the interviewing detectives. The recording consisted of defendant's first
interview, which ended when he invoked his right to remain silent; his
subsequent communications with the officers who came into the interview room
to photograph defendant's injuries and remove defendant's clothing; and the
second interview, during which defendant waived his Miranda rights. Detective
Gregory Malesich, who conducted both interviews, testified during the
suppression hearing.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5141-16T1
2
Detective Malesich testified as follows. Around 10:00 p.m. on November
17, 2013, the police received a telephone call that an individual had been stabbed
and was lying in the street. Detective Malesich arrived at the scene around 11:30
p.m. By that time, the victim, who had been transported to the hospital, was
pronounced dead. Defendant was arrested and taken to the police station to be
interviewed.
At 2:50 a.m., after interviewing other eyewitnesses to the evening's
events, Detective Malesich and another detective questioned defendant. The
detectives asked defendant a number of introductory questions, informed him
that they wanted to question him "about what happened," but needed to review
the Miranda form with defendant before asking additional questions. In
response, defendant asked about the charges and bail. Detective Malesich told
defendant he was not charged with anything. Defendant stated, "[w]ell I don't
want to talk about nothing." Defendant confirmed he did not wish to speak with
the police without some understanding of the charges against him. As a result
of defendant's statement, two minutes after the interview began, the detectives
ended the questioning and left the room.
Soon thereafter, as captured on the videotape, two different officers
entered the room to take pictures of defendant's injuries and collect his clothing.
A-5141-16T1
3
Defendant asked these officers to explain the charges against him. The officers
responded they were "just taking pictures" and were not permitted to speak with
defendant because he invoked his right to remain silent. Defendant continued
to protest that no one was telling him anything regarding the charges against
him.
Detective Malesich and two other detectives returned to the interview
room. The detectives told defendant they had to review his Miranda rights and
have defendant understand those rights before they could speak with him.
Defendant then authorized the detectives to review his Miranda rights "so I can
know what's going on." The detectives confirmed that defendant asked them to
return to the interview room to review the Miranda rights and speak with the
police. Detective Malesich then read defendant his rights and presented a
Miranda waiver form for defendant's signature.
Once defendant signed the form and waived his Miranda rights, the
detectives asked defendant what happened. Defendant stated he was involved
in a fight with the victim but did not admit to stabbing him. During the second
interview, the detectives informed defendant that the victim had died.
After hearing the detective's testimony and reviewing the videotape of
defendant's interviews, the judge determined defendant's waiver of his rights
A-5141-16T1
4
was voluntary and intelligent. The judge concluded the detectives ended the
first interview when defendant said he did not want to talk. However, defendant
subsequently indicated he wanted to speak with the detectives. Based on the
evidence, the judge determined defendant was in custody, "clearly the target of
the investigation," and opined that even if the detectives did not know "the exact
charges," they knew "[defendant] was going to be charged with some crime
associated with the death of [the victim]." While the judge acknowledged
"[d]efendant wanted to engage in conversation [with the detectives] to discover
what his criminal charges were," he determined defendant's waiver of his
Miranda rights was knowing and voluntary. Thus, the judge denied defendant's
motion to suppress his statements to the detectives.
After denial of the suppression motion, the matter proceeded to trial. At
trial, several eyewitnesses testified to seeing defendant and the victim fighting
in the street. When the fight ended, the witnesses saw each man walk in the
opposite direction. Defendant walked to his apartment, but returned a few
minutes later according to witnesses. After defendant returned, one witness saw
him stab the victim several times. Another eyewitness explained she saw what
appeared to be defendant punching the victim below his waist. This witness saw
"a little, tiny knife" on the street and the witness gave the knife to defendant.
A-5141-16T1
5
Defendant then tossed the knife into a parking lot across the street, but held a
different blood-covered knife in his hand. The eyewitness testified defendant
returned to his apartment building.
Three police officers who responded to the scene testified during the trial.
The officers described finding the victim on the sidewalk, propped up against a
telephone pole. The victim had three puncture wounds, one to his chest and two
in his thigh. The victim was transported to the hospital and pronounced dead
upon arrival.
After speaking with people at the scene, Detective Jules Maiorano called
defendant on his cellphone and told him to turn himself in for questioning.
Defendant stated he was "in Glassboro and that he needed a ride" to the police
station. Shortly after this discussion with defendant, the officers received a call
that there was a man running through backyards in the area. The officers found
defendant running through a backyard, and ordered him to stop. Defendant
stopped, and was placed under arrest.
The police obtained video surveillance from defendant's apartment
building and a nearby building, which captured images of the incident. The
police also collected a serrated knife blade across the street from defendant's
apartment building and blood samples from the street. In addition, the police
A-5141-16T1
6
seized a number of items from defendant's apartment, including a knife from a
drying rack in the kitchen, a shirt next to the kitchen sink, and drain traps from
the kitchen and bathroom sinks. While defendant was at the police station, the
police removed defendant's clothing; photographed cuts and bruises on
defendant's hands, back, and face; and took a buccal swab. The State's forensic
laboratory found the victim's DNA on defendant's clothing and identified DNA
from both men on a shirt and a knife.
The victim had bruises on his left forearm, scrapes on his elbows, and
three stab wounds. One stab wound penetrated the inner thigh six-and-one-half
inches and cut the femoral artery and vein, "causing massive and rapid
bleeding." A second stab wound, about two inches below the first, "[s]truck
soft tissues only." A third stab wound, which was "relatively superficial," was
in the area of the victim's rib cage. The medical examiner identified the wound
to the victim's inner thigh as life-threatening, and concluded his death was a
homicide.
During the jury trial, the State played surveillance recordings from
cameras mounted on or near defendant's apartment building. The State also
played the recording of defendant's first and second interviews, including the
A-5141-16T1
7
exchanges between defendant and the police that transpired between the two
interrogations. The jury convicted defendant on all counts.
On appeal, defendant, through his counsel, presents the following
arguments:
POINT I
DEFENDANT'S STATEMENT SHOULD HAVE
BEEN SUPPRESSED BECAUSE THE POLICE
TRICKED AND COERCED HIM INTO WAIVING
HIS RIGHTS, AFTER HE HAD INVOKED THEM,
BY TELLING HIM THEY COULD NOT ANSWER
HIS INQUIRIES ABOUT HIS STATUS UNLESS HE
WAIVED HIS RIGHTS.
POINT II
THE MURDER CONVICTION MUST BE
REVERSED BECAUSE DEFENDANT
MAINTAINED THAT HE ACTED RECKLESSLY,
AND THE PROSECUTOR MISSTATED THE
DEFINITION OF RECKLESSNESS (Not raised
below).
In his pro se supplemental brief, defendant argues the following points:
POINT I
THE STATEMENT ALLEGEDLY MADE BY
DEFENDANT SHOULD HAVE BEEN SUPPRESED
BECAUSE THE PROCEDURES UTILIZED BY LAW
ENFORCEMENT OFFICERS, DURING THE
CUSTODIAL INTERROGATION OF MR. JONES,
FAILED TO COMPLY WITH MIRANDA V.
ARIZONA, VIOLATING THE FIFTH, AND THE
FOURTEENTH AMENDMENT, OF THE UNITED
A-5141-16T1
8
STATES CONSTITUTION, AND ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
A. THE TRIAL COURT FAILED TO PROPERLY
APPLIED THE "TOTALITY OF THE
CIRCUMSTANCES" TEST IN ADMITTING THE
DEFENDANT'S STATEMENT.
B. THE DEFENDANT'S WAIVER OF HIS RIGHT
AGAINST SELF-INCRIMINATION WAS NOT
KNOWING, VOLUNTARY AND
INTELLIGENT[LY] MADE.
POINT II
MISCONDUCT BY THE PROSECUTOR DEPRIVED
THE DEFENDANT OF HIS CONSTITUTIONAL
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART.
I, ¶¶ 1, 10.
POINT III
THE TRIAL COURT ERRED IN NOT GRANTING
DEFENDANT'S MOTION FOR A NEW TRIAL ON
THE GROUNDS THAT THE VERDICT WAS
AGAINST THE WIEGHT OF THE EVIDENCE.
POINT IV
THE TRIAL COURT ERRED IN NOT DOING A
FOLLOW UP COLLOLOQUY IN ADVISING
DEFENDANT OF HIS RIGHT TO TESTIFY.
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL
UNFAIR.
A-5141-16T1
9
We first address defendant's contention that the judge erred in admitting
his statements to the detectives because the State failed to prove beyond a
reasonable doubt that he knowingly, intelligently, and voluntarily waived his
Miranda rights.
We "engage in a 'searching and critical' review of the record to ensure
protection of a defendant's constitutional rights" when assessing the propriety
of a trial judge's decision to admit a police-obtained statement. State v. Hreha,
217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)).
Nonetheless, we defer to the trial judge's credibility and factual findings because
of the judge's ability to see and hear the witnesses, and thereby obtain the
intangible but crucial feel of the case. State v. Maltese, 222 N.J. 525, 543
(2015). To warrant reversal, a defendant must show the admission of the
statement was error "capable of producing an unjust result." Ibid. On appeal
from a trial court's decision on a suppression motion, we defer to the trial judge's
findings so long as they are supported by sufficient credible evidence. State v.
S.S., 229 N.J. 360, 370 (2017). We should not reverse a trial court's findings of
fact based on its review of a recording of a custodial interrogation unless the
findings are clearly erroneous or mistaken. Ibid.A-5141-16T1
10
"A suspect's waiver of his [or her] Fifth Amendment right to silence is valid
only if made 'voluntarily, knowingly and intelligently.'" State v. Adams, 127 N.J.
438, 447 (1992) (quoting Miranda, 384 U.S. at 444). The State bears the burden of
establishing beyond a reasonable doubt that a confession is knowing and voluntary.
N.J.R.E. 104(c); State v. Nyhammer, 197 N.J. 383, 401 n.9 (2009). The
determination of the voluntariness of a custodial statement requires an assessment
of the totality of the circumstances surrounding the giving of the statement. State v.
Roach, 146 N.J. 208, 227 (1996).
A Miranda waiver is invalid if police withhold the fact that an arrest
warrant or criminal complaint has been issued. State v. A.G.D., 178 N.J. 56, 68
(2002). However, police are not required to inform a person of their status as a
suspect. Nyhammer, 197 N.J. at 404-05 (finding a suspect knowingly and
voluntarily waived his rights after being told he was being questioned about
allegations against a third party and not told that the same allegations were made
against him). Failure to inform a person that he is a suspect is a factor in
determining whether a waiver of rights was knowing and voluntary. Id. at 405.
In his motion to suppress the statements he made to the detectives,
defendant argues his waiver was not voluntary or intelligent because he was not
advised he was going to be charged with murder. After hearing the testimony
A-5141-16T1
11
and reviewing the videotaped recording of defendant's interviews, the judge
issued a twenty-one page written opinion denying defendant's motion to
suppress. The judge found defendant initiated the discussion with the detectives
the second time and properly waived his rights prior to any questions or
discussion about the investigation. The judge noted defendant's lack of
knowledge or information about the charges was a factor in the totality of the
circumstances analysis, but did not automatically evidence the involuntary
nature of defendant's waiver of his rights. The judge determined it was clear
defendant was a suspect in the stabbing and "the State has established beyond a
reasonable [doubt] that there existed a knowing and voluntary waiver."
There was sufficient evidence that defendant's statement to the detectives
was knowing, voluntary, and intelligent. The detectives honored defendant's
right to remain silent when they left the room after the first interview. When
defendant subsequently asked to speak with the detectives, the officers read the
Miranda rights and began questioning defendant a second time. Defendant
spoke willingly about the incident and did not reassert his Miranda rights, even
after learning the victim had died.
The detectives were not required to tell defendant that he was a suspect or
that the victim had died. Defendant was aware of his status as a suspect when
A-5141-16T1
12
he was arrested at the scene of the crime. The detectives did not exert any
physical punishment, mental exhaustion, or otherwise cajole defendant into
giving a statement. The officers truthfully stated no charges had been brought
against defendant. Both interviews were short. The first interview lasted two
minutes and the second interview lasted approximately thirty-five minutes.
Defendant's statement to the police was a product of his free will, and the
detectives did not mislead him. Accordingly, the record supports the judge's
denial of defendant's motion to suppress.
We next turn to defendant's argument that the prosecutor misstated the
definition of recklessness during her summation. "Where a defendant fails to object
to the challenged statements and thus deprives the trial judge of the opportunity to
ameliorate any perceived errors, he must establish that the comments constitute plain
error under Rule 2:10-2." State v. Feal, 194 N.J. 293, 312 (2008). Plain error must
be "'sufficient [to raise] a reasonable doubt as to whether the error led the jury to a
result that it otherwise might not have reached.'" Ibid. (quoting State v. Daniels, 182
N.J. 80, 102 (2004)). Failure to object to the prosecutor's statements at trial
"indicates that defense counsel did not believe the remarks were prejudicial at the
time," and "deprives the court of the opportunity" to address and cure the error. State
A-5141-16T1
13
v. Timmendequas, 161 N.J. 515, 576 (1999) (citing State v. Irving, 114 N.J. 427,
444 (1989)).
"[P]rosecutors in criminal cases are expected to make vigorous and forceful
closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors are
granted wide latitude to make "fair comment" on the evidence so long as the
argument stays within legitimate inferences that can be deduced from the evidence.
See State v. Mayberry, 52 N.J. 413, 437 (1968). Prosecutors may not attempt to
argue facts to the jury which are not supported by the record. Frost, 158 N.J. at 85.
For the first time on appeal, defendant claims that the prosecutor misstated the
law in her closing arguments to the jury. Specifically, defendant contends the
prosecutor's explanation of reckless conduct ignored the requirement of a "conscious
disregard of a substantial risk," and instead improperly equated recklessness with an
accident. Defendant asserts the jury heard two different definitions of recklessness,
from the court and the prosecutor, and it cannot be determined whether the jury
applied the correct legal standard in assessing the lesser manslaughter offenses. As
such, defendant claims his conviction must be reversed.
The prosecutor did not misstate the law and her comments were proper. The
prosecutor stated on at least nine separate occasions that the judge would instruct the
jurors on the law. The judge gave the jury correct instructions regarding reckless
A-5141-16T1
14
conduct. The prosecutor's comments did not substantially prejudice defendant's
fundamental right to have a jury fairly evaluate the merits of his defense or reach a
verdict it otherwise would not have reached.
Moreover, the jury had more than ample evidence to conclude the victim's
death was not an accident as defendant maintained. The victim was stabbed
three times, including the fatal wound to his thigh. The State presented evidence
in the form of videotapes from surveillance cameras, eyewitness testimony, and
DNA evidence. Thus, even if the prosecutor's comments were improper, the
jury had overwhelming evidence of defendant's guilt. We are not persuaded that
the jury reached a verdict that it otherwise would not have reached but for the
prosecutor's summation.
The arguments in defendant's pro se supplemental brief are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
A-5141-16T1
15