STATE OF NEW JERSEY VS. VERLANCE BUDDINGTON (15-05-0688, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1159-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERLANCE BUDDINGTON,
Defendant-Appellant.
_______________________________
Submitted October 16, 2018 – Decided October 30, 2018
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 15-05-0688.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Watson, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Svjetlana Tesic, Assistant Prosecutor, on
the brief).
PER CURIAM
After pleading guilty to aggravated manslaughter pursuant to a plea
agreement, and receiving a twenty-four-year prison term,1 defendant filed this
appeal, challenging the pretrial order permitting the admission of defendant's
custodial statements for impeachment purposes, if he should testify. Defendant
also appeals his sentence. We affirm.
On October 8, 2014, defendant shot and killed Hassan Byrd, who owed
defendant $5000. After witness interviews and a surveillance video identified
defendant as the shooter, the police arrested defendant inside a friend's
apartment. The officers recovered a 9mm Springfield Armory XDM-9 handgun
from the hallway outside of the apartment, inside of an empty diaper box. The
shell casings recovered next to the victim were also 9mm. The police questioned
defendant at the police station, where he confessed to the killing.
While court-ordered evaluations found defendant competent to stand trial,
they also indicated defendant lacked the capacity to properly waive his Miranda2
rights. The State therefore moved to admit defendant's custodial statement for
impeachment purposes, should he testify at trial. The trial judge granted the
1
Defendant's plea agreement provided for a recommended twenty-five-year
prison term.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
2 A-1159-17T4
State's motion, finding "no evidence of police coercion," and that no "threats or
promises were made to [d]efendant at any point during the interview." The
judge noted the short length of the interrogation, and that "[w]hile [defendant's]
intellectual disability is certainly a factor to be considered in the totality of the
circumstances analysis, alone it is not determinative."
In his written opinion, the judge rejected defendant's argument that his
custodial statements were involuntary, notwithstanding the fact that defendant
did not make an intelligent and knowing waiver of his Miranda rights.
Specifically, the judge cited to Colorado v. Connelly, 479 U.S. 157 (1986) and
State v. Smith, 307 N.J. Super. 1 (App. Div. 1997) in reasoning that "police
coercion is a necessary predicate to a finding that a statement is involuntary,"
and that in this case there was "no evidence of police coercion." The judge
found no "threats or promises . . . made to [d]efendant at any point during the
interview," along with the facts that the interview lasted approximately twenty
minutes, and that the police were not aware of defendant's intellectual
disabilities during the interrogation. Therefore, the judge held that defendant's
custodial statements were admissible for impeachment purposes, should
defendant testify at trial.
3 A-1159-17T4
On June 1, 2017, the court sentenced defendant to twenty-four years in
prison subject to an eighty-five percent parole ineligibility period. This appeal
followed.
On appeal, defendant presents the following arguments:
POINT I
THE STATE, HAVING CONCEDED THAT
DEFENDANT'S INTELLECTUAL AND
COGNITIVE IMPAIRMENT RENDERED HIM
INCOMPETENT TO WAIVE HIS MIRANDA
RIGHTS, SHOULD NOT BE ALLOWED TO
USE DEFENDANT'S STATEMENT FOR
IMPEACHMENT PURPOSES DURING
CROSS-EXAMINATION.
POINT II
DEFENDANT'S SENTENCE OF TWENTY-
FOUR YEARS FOR AGGRAVATED
MANSLAUGHTER IS MANIFESTLY
EXCESSIVE AND THE RESULT OF AN
IMPROPER ASSESSMENT OF MITIGATING
FACTOR FOUR.
I
We first address defendant's challenge to the trial court's ruling allowing
the admission of his custodial statements for impeachment purposes. In
reviewing a trial court's admission of a defendant's confession, our task is to
"engage in a 'searching and critical' review of the record to ensure protection of
a defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015)
4 A-1159-17T4
(quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). We defer to the factual
findings of the trial court so long as those findings are supported by sufficient
evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citation
omitted). Our review of the trial court's legal conclusions, however, is plenary.
State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted).
Defendant argues the trial judge erred in his determination that "evidence
of police coercion was an absolute prerequisite to [a] finding of
involuntariness[,] and the absence of such police coercion was dispositive of the
inquiry." Defendant contends the judge should have found his custodial
statements were involuntary, based on his intellectual impairments, which
caused the questioning by police to be coercive. We disagree.
New Jersey has long "adopted and employed the impeachment exception
[to the exclusionary rule] set forth in Harris." State v. Burris, 145 N.J. 509, 524
(1996) (citing Harris v. New York, 401 U.S. 222 (1971)) (other citations
omitted). The impeachment exception maintains the inadmissibility of evidence
subject to the exclusionary rule in a prosecution's case-in-chief, but admits the
otherwise excluded evidence during defendant's cross-examination, should
defendant take the stand. New Jersey jurisprudence has "recognized and
accepted the Supreme Court's use of the impeachment exception in cases
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involving constitutional violations, as well as Miranda violations of the privilege
against self-incrimination." Ibid. (citation omitted).
"The impeachment exception is strictly limited to situations in which the
suppressed statement is trustworthy and reliable in that it was given freely and
voluntarily without compelling influences." Id. at 525 (citing Mincey v.
Arizona, 437 U.S. 385, 397-98 (1978)).
The United States Supreme Court observed that a
determination of whether a statement is voluntary
entails a factual inquiry. It requires careful evaluation
of all the circumstances of the interrogation, and,
ultimately, the question is whether the defendant's will
was overborne. Mincey, 437 U.S. at 397-98. The
Supreme Court has recognized that if the defendant's
will was overborne, the confession is not the "product
of a rational intellect and a free will." Blackburn v.
Alabama, 361 U.S. 199, 208 (1960). A confession that
is not the product of such "rational intellect" and "free
will" is involuntary and is violative of the Due Process
Clause of the Fourteenth Amendment. Townsend v.
Sain, 372 U.S. 293 (1963) [(other citations omitted)].
[Id. at 525-26 (emphasis added).]
Our Supreme Court has repeatedly emphasized how to analyze voluntary
confession cases, explaining,
[T]he State must demonstrate the voluntariness of a
confession beyond a reasonable doubt. State v.
Galloway, 133 N.J. 631, 654 (1993). An involuntary
confession can result from physical and psychological
coercion. Ibid. Confessions are not voluntary if
derived from "very substantial" psychological
pressures that overbear the suspect's will. Id. at 656.
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In determining whether a defendant's will was
overborne, the totality of the circumstances must be
examined, "including both the characteristics of the
defendant and the nature of the interrogation." Id. at
654. Relevant factors 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." Ibid. [(other citations omitted)].
[State v. Cook, 179 N.J. 533, 562-63 (2004).]
Here, defendant provides no meritorious support or reasoning for his
argument that evidence of police coercion is not a prerequisite to a finding of
involuntariness. To the contrary, the United States Supreme Court held that
"[a]bsent police conduct causally related to the confession, there is simply no
basis for concluding that any state actor has deprived a criminal defendant of
due process of law." Connelly, 479 U.S. at 164. The Connelly Court
acknowledged the uptick of interrogators' "more subtle forms of psychological
persuasion," and responded that "this fact does not justify a conclusion that a
defendant's mental condition, by itself and apart from its relation to official
coercion, should ever dispose of the inquiry into constitutional 'voluntariness.'"
Ibid. This court has adopted Connelly's holding. Smith, 307 N.J. Super. at 10
(quoting Connelly, 479 U.S. at 167 ("[C]oercive police activity is a necessary
predicate to the finding that a confession is not "voluntary" within the meaning
of the Due Process Clause of the Fourteenth Amendment.")).
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Defendant cites to United States v. Preston, 751 F.3d 1008 (9th Cir. 2014)
as a case where the court "examined the coerciveness of police interrogation
techniques through the lens of defendant's mental illness and ruled that his
statement was involuntary." However, in Preston the Ninth Circuit found
multiple instances of improper interrogation techniques by the police, threats of
continued questioning, "multiple deceptions" by the officers, "false promises of
leniency and confidentiality," and other forms of police misconduct, leading the
court to conclude that defendant's "will was overborne and his statement
involuntary." Id. at 1023-28.
Defendant's only assertion of police misconduct during the custodial
interrogation took place when the police began discussing the events that led up
to Byrd's killing, and the following colloquy occurred:
A: I came around there early, like around that time.
Q: It was around? Well, we got you on camera,
sometime I guess it was around, 9:22 . . . .
A: Yeah.
Q: Okay and then what . . . happens then?
A: Went around it.
Q: Went around where?
A: Woodlawn.
Q: Okay. You and him had words again?
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A: Yeah, man.
Q: What did he say this time? Did he continue to
threaten you?
A: Yeah.
Q: And then what?
A: That's all that happened.
Q: We can't even though we know what happened.
We can't . . . put words into your mouth. We can't
tell you, we have to have you tell us even though
we know, you know. It's just the way it is.
A: That's all that happened.
Q: Did he threaten you today?
A: Yeah, he threatened me.
[(emphasis added)]
Defendant then continued to answer the officers' questions, and it was not
until more than twenty questions and twenty answers later that defendant made
inculpating statements. On appeal, defendant argues:
The officer's explanation of 'the way it is' compelled
[defendant] to continue with the interrogation. For a
suspect of [defendant]'s cognitive limitations, the
police representation that although they were aware of
what happened they needed to hear it from [defendant],
may have led him to believe that the police had all the
inculpatory evidence, and the interrogation was simply
an exercise in hearing it from his lips.
9 A-1159-17T4
By the time of the custodial interrogation, however, the police had already
tracked down defendant from the crime scene to the apartment where he was
apprehended. At the apartment, they recovered a gun in a box in the hallway
outside the apartment where defendant was found. Witness interviews identified
defendant as the shooter. Thus, the officers had enough evidence to know that
defendant knew more than his assertion – "[t]hat's all that happened" – and
therefore reasonably continued to question defendant. Moreover, by this time
defendant already acknowledged that he met with Byrd on the day of the
incident, and that Byrd threatened him. After defendant said "that's all that
happened" a second time, the officers asked more than twenty questions seeking
additional details about this encounter and defendant's history with Byrd. In
other words, the officers responded to "[t]hat's all that happened" with further
questions regarding information already given in the interrogation, rather than
repeating the same questions or pushing defendant further along in the story.
Ultimately, defendant's assertion he was compelled to continue with the
investigation is meritless, as it falls far short of the Court's standard that "'very
substantial' psychological pressures that overbear the suspect's will" must be
found in ruling that an involuntary confession occurred. Cook, 179 N.J. at 563
(quoting Galloway, 133 N.J. at 656).
10 A-1159-17T4
The record supports the trial judge's finding of "no evidence of police
coercion," and that no "threats or promises were made to [d]efendant at any point
during the interview." The judge noted the short length of the interrogation, and
that "[w]hile [defendant's] intellectual disability is certainly a factor to be
considered in the totality of the circumstances analysis, alone it is not
determinative," a rationale consistent with this court's finding in Smith.
Furthermore, the record shows defendant's statements were not only
voluntary, but also reliable, as all material statements find corroboration in the
record. Defendant stated that he walked down Ocean Avenue and to his friend's
apartment – this was corroborated by the surveillance video and the fact that
defendant was arrested at the apartment. Defendant's statement of where he hid
the gun was corroborated by the fact the police found it at the stated location.
Defendant told the story multiple times during the interrogation, with no
inconsistencies. Defendant knew Byrd as "Hass," a shortened version of his first
name "Hassan." Defendant also discussed his custodial interrogation with Dr.
Cook, stating that his attorney told him that he should not have said anything;
however, there was no indication he recanted anything he said in the
interrogation. We therefore hold that the trial court correctly ruled that
defendant's statements made at the custodial interrogation were voluntary, and
therefore are within the impeachment exception to the exclusionary rule.
11 A-1159-17T4
II
Defendant next argues he received an excessive sentence, asserting the
trial court erred in failing to apply mitigating factor four, and in failing to apply
aggravating factors three, six, and nine "through the lens of defendant's
cognitive, mental, and psychiatric defects."
Our Supreme Court has repeatedly held that sentencing determinations are
reviewed on appeal with a highly deferential standard. State v. Fuentes, 217
N.J. 57, 70 (2014). Specifically the Court has articulated:
The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984) (alteration in original)).]
When determining a sentencing term, a trial court must identify whether
any of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) or the
mitigating factors in N.J.S.A. 2C:44-1(b) apply, and then balance the applicable
factors. Id. at 72. The relevant factors must then be "qualitatively addressed
and assigned appropriate weight in a case-specific balancing process." Id. at 72-
73 (citing State v. Kruse, 105 N.J. 354, 363 (1987)). The court must also "state
12 A-1159-17T4
reasons for imposing such sentence including . . . the factual basis supporting a
finding of particular aggravating or mitigating factors affecting sentence…." R.
3:21-4(g). It is especially important that the court provide a "clear explanation
'of the balancing of aggravating and mitigating factors with regard to imposition
of sentences and periods of parole ineligibility . . . .'" Fuentes, 217 N.J. at 73
(quoting State v. Pillot, 115 N.J. 558, 565-66 (1989)) (other citations omitted).
In sentencing defendant, the court found significant the following
aggravating factors: 1) the risk of re-offense (factor three); 2) the extent of
defendant's prior criminal record and the severity of those offenses (factor six);
and 3) the need for deterrence (factor nine). See N.J.S.A. 2C:44-1(a)(3). At
defendant's request, the judge considered the mitigating factor of substantial
grounds tending to excuse or justify the defendant's conduct (factor four), but
declined to apply it. See N.J.S.A. 2C:44-1(b)(4).
On appeal, defendant first contends that mitigating factor four "applies
due to [defendant's] documented intellectual and cognitive deficits."
Defendant's cases in support of his argument are clearly distinguishable: State
v. Hess, 207 N.J. 123, 129 (2011) concerned a defendant who "suffered from
Battered Women's Syndrome when she killed her husband"; State v. Nataluk,
316 N.J. Super. 336, 342-43 (App. Div. 1998) involved a defendant who
"previously suffered three severe head injuries," "frequently experienced
13 A-1159-17T4
delusions and hallucinations," and whose expert doctor opined "defendant was
insane at the time of the incident"; and in State v. Nayee, 192 N.J. 475 (2007),
the Supreme Court summarily remanded the case "solely to the issue of the trial
court's refusal to consider the record before it in respect of defendant's mental
illness as a mitigating factor under N.J.S.A. 2C:44-1b(4) in arriving at its
sentence."
In this case, however, the trial judge stated, "I certainly accept and
acknowledge that you have issues, mostly cognitive in nature." He then
explained to defendant,
But I have to weigh that against the facts and
circumstances in this case. Whatever those cognitive
deficiencies are, [it] certainly doesn’t convince me at
all that it [a]ffected your ability to understand and
appreciate what you did in October 2014, when you
took that gun out and fired it multiple times at an
unarmed man.
The result was all but certain. There's nothing before
me that in any [way] begins to excuse, minimize or
explain your conduct. You are a seasoned veteran in
the juvenile justice system by the time you took the gun
out. You had been arrested twice as an adult for
indictable charges. You knew what you were doing.
You knew the results that were going to occur.
The judge then acknowledged defendant and Byrd's relationship, and
defendant's clear intentions on the day of the incident, stating:
Certainly . . . that again doesn't excuse this conduct. It
doesn't minimize it. . . . You shot him five times. And
14 A-1159-17T4
then . . . . [y]ou ran and you hid, because you knew what
you did was wrong. You tried to hide the gun so
nobody would find it. . . . All indicating to me you well
knew what you were doing when you did that.
Whatever shortcomings you may have had in life, I
don't believe [a]ffected your decision one bit that day.
So I clearly don't find mitigating factors three or four
apply here.
The judge clearly considered defendant's cognitive disabilities under
mitigating factor four, and weighed it against the facts of the case and language
of the statute. We find no basis to disturb his decision not to apply mitigating
factor four.
Second, defendant argues that "while aggravating factors three, six, and
nine are applicable, they must be considered through the lens of defendant's
cognitive, mental, and psychiatric deficits." Defendant fails to provide any legal
support for this assertion. Moreover, as explained above, the judge did consider
defendant's cognitive disabilities. He then provided ample reasons as to his
rationale for applying factors three, six, and nine.
Finally, it should be noted that in his plea form, under "[s]pecify any
sentence the prosecutor has agreed to recommend," defendant wrote that he "will
plead guilty to [count one] as amended to . . . [aggravated] manslaughter[, and]
in exchange the state will seek [a twenty-five-year sentence] . . . ." Defendant
15 A-1159-17T4
was ultimately sentenced to twenty-four years in prison subject to an eighty-five
percent parole ineligibility period.
We conclude the sentencing court applied correct legal principles and its
findings regarding aggravating and mitigating factors are fully supported by the
record. See State v. Megargel, 143 N.J. 484, 493-94 (1996). We find no clear
error of judgment in the court's application of the facts to the law that would
shock our conscience. See id. at 393 (citation omitted). Accordingly, we find
no abuse of discretion in the imposition of an extended term or the particular
sentence imposed here. See State v. Pierce, 188 N.J. 155, 166 n.4 (2006)
(citation omitted); see also State v. Hudson, 209 N.J. 513, 526 (2012) (citation
omitted).
Affirmed.
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