STATE OF NEW JERSEY v. KAWAN BOLT (2011)

Defendant Kawan Bolt appeals from his conviction by a jury on charges of armed robbery, attempted theft, aggravated assault, and possession of a weapon for an unlawful purpose.   He also appeals his sentence as excessive.   We affirm.

The relevant facts were developed through the testimony of police officers and the victims of the robbery at trial and at a pretrial hearing to determine admissibility of defendant's statements to the police.

At about 9:00 p.m. on October 24, 2005, two masked men entered the Santana Deli on Brunswick Avenue in Trenton.   The owner was sitting near the cash register and three employees were working in the store.   One of the victims described the masks as appearing to be shirts pulled over the two men's faces.

The shorter masked man put a handgun to the head of the owner and demanded money.   The taller man punched the owner.   One of the employees grabbed at the shorter man's gun and a struggle ensued with the two robbers.   The taller man fought the employee and punched him two times in the face.   In the struggle, the loose masks of the two men fell off their faces.   The owner and the employees recognized both robbers as frequent customers of the deli.

During the fight, the owner got hold of a small knife and stabbed the taller man near his right eye and in the left side of his abdomen.   The two robbers fled the store without taking any money.

Using information that the owner had stabbed and wounded one of the robbers, Trenton police checked with local hospitals and learned that a man had come to the emergency room of St. Francis Hospital at about 9:30 p.m. with stab wounds above the eye and in his abdomen.   Patrolman Ponticello was dispatched to the hospital.   A nurse described the nature of the wounds to the officer and also told him that the man said he had been “jumped in South Trenton.”

Officer Ponticello approached the man, who was defendant Bolt, as he was sitting on a hospital bed with a towel over his head.   The officer asked what happened.   Defendant repeated that he had been “jumped in South Trenton.”   Officer Ponticello contacted his headquarters and reported the information he had learned.

One of the employees of the deli was then brought to the hospital, and he identified defendant lying in the hospital bed by nodding his head and saying “si, si, si, si.”   Later that night, the victims identified the other robber through a photo array at the police station as co-defendant Victor Baylor.

Meanwhile at the hospital, Detective Crosby arrived to question defendant.   He learned that defendant had signed in at the emergency room under the name Shamar Mason.   He approached defendant, who was lying on a hospital bed, and he advised him of Miranda rights.¹  Regarding his injuries, defendant said that two Hispanic men had attempted to rob him and he had fought with them and was stabbed.   Detective Crosby responded that he did not believe defendant, that he was lying, and that he would be questioned further at police headquarters.

As the detective started to leave the hospital room, defendant called him back and admitted he had lied about being the victim of a robbery.   He said he had walked into the deli on Brunswick Avenue and saw that a robbery was taking place.   He attempted to help the employees against the robber but was stabbed in the struggle.   At the time defendant made those statements, the police had not told him they were investigating a robbery at that deli.

At the joint trial of defendant and Baylor, defendant testified and repeated his second statement, that he was attempting to aid the deli owner and employees against a robber when he was wounded.   He claimed that he and one of the employees had reached for the robber's gun at the same time.   He said that after being stabbed, he ran out of the deli and around the corner toward his neighborhood, where a woman gave him a ride to the hospital.   Defendant also testified that he had been a regular customer of the deli for two years and that he was familiar with co-defendant Baylor.

The jury found defendant guilty of all four charges in the indictment:  first-degree armed robbery, N.J.S.A. 2C:15-1;  third-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3a;  fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4);  and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.

At sentencing, the court merged all other charges into the count for first-degree armed robbery and sentenced defendant to twelve years' imprisonment, with eighty-five percent of the sentence to be served before eligibility for parole and five years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed appropriate statutory money penalties.

On appeal, defendant makes the following arguments:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE ORAL STATEMENTS MADE BY HIM TO THE POLICE PURSUANT TO CUSTODIAL INTERROGATION WITHOUT HAVING BEEN ADVISED OF HIS MIRANDA WARNINGS, WHICH NECESSARILY TAINTED HIS ORAL STATEMENTS MADE IMMEDIATELY THEREAFTER AFTER HE WAS ADVISED OF HIS WARNING.

POINT II THE TRIAL COURT'S INDEPENDENT QUESTIONING OF THE DEFENDANT CAST ITSELF INTO THE ROLE OF AN ADVOCATE BY ESSENTIALLY PROJECTING ITS OWN DISBELIEF OF THE DEFENDANT'S TESTIMONY.  (NOT RAISED BELOW).

POINT III THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT THE FACT THE DEFENDANT GAVE A FALSE NAME TO THE HOSPITAL COULD BE UTILIZED AS DEMONSTRATING A CONSCIOUSNESS OF GUILT ON HIS BEHALF.

POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We find no merit in any of defendant's arguments.

Defendant first argues that his statements to the police at the hospital should have been suppressed because he was not advised of his Miranda rights before the initial questioning by Officer Ponticello.   Although he did receive the warnings from Detective Crosby before the detective's questioning, defendant argues that those statements were the “fruit of the poisonous tree” of the initial unconstitutional questioning.   See State v. Bey, 112 N.J. 45, 71 (1988);  State v. Johnson, 120 N.J. 263, 286 (1990);  Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963).

The trial court rejected these arguments and concluded that defendant's statements at the hospital were admissible because Officer Ponticello's single question was not posed in the course of custodial interrogation and Miranda warnings were not necessary at that time.   We agree.

On a suppression motion, we defer to the findings of fact and credibility determinations of the trial court.  State v. Robinson, 200 N.J. 1, 15 (2009);  State v. Elders, 192 N.J. 224, 243-44 (2007);  State v. Locurto, 157 N.J. 463, 471 (1999);  State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L. Ed.2d 1022 (1966);  State v. Johnson, 42 N.J. 146, 161 (1964).   Here, the trial court found the testimony of Officer Ponticello to be credible that he put only a single question to defendant in the emergency room, asking defendant what had happened.

Miranda requires the familiar prophylactic set of warnings when police interrogate a suspect who is in custody.   The warnings are not required unless the “person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L. Ed.2d at 706;  see State v. Graves, 60 N.J. 441, 448 (1972);  State v. Dispoto, 383 N.J.Super. 205, 214 (App.Div.2006), aff'd on other grounds, 189 N.J. 108 (2007).  Miranda advice “is deemed necessary due to the pressure inherent in an ‘incommunicado interrogation of individuals in a police-dominated atmosphere[.]’ ”  State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 445, 86 S.Ct. at 1612, 16 L. Ed.2d at 707).

Questioning in a hospital room where a defendant is not under arrest or guard is typically not viewed as a coercive police atmosphere.   See State v. Zucconi, 50 N.J. 361, 364 (1967);  State v. Choinacki, 324 N.J.Super. 19, 44-45 (App.Div.), certif. denied, 162 N.J. 197 (1999).

Furthermore, brief, non-coercive questioning, even if the suspect has been temporarily detained for investigation, does not require that the police first give Miranda warnings.   See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L. Ed.2d 317, 334-35 (1984);  State v. Smith, 374 N.J.Super. 425, 431 (App.Div.2005);  State v. Brown, 352 N.J.Super. 338, 353-56 (App.Div.), certif. denied, 174 N.J. 544 (2002);  State v. Pierson, 223 N.J.Super. 62, 67 (App.Div.1988).   The need for Miranda warnings depends on “circumstances includ[ing] the duration of the detention, the place and time of the interrogation, the nature of the questions and the language employed by the interrogator, the conduct of the police, the status of the interrogator, the status of the suspect, and any other relevant circumstances.”  Brown, supra, 352 N.J.Super. at 352;  State v. Coburn, 271 N.J.Super. 586, 595-96 (App.Div.1987), certif. denied, 110 N.J. 300 (1988).

Here, Officer Ponticello approached defendant sitting on a bed in the emergency room and asked him a single, non-accusatory question - What happened?   That question could be expected of a patient in a hospital under the circumstances of defendant's presence there.   It was not police interrogation.   The officer did not indicate to defendant that he was under arrest or otherwise detained.   He did not tell defendant that he was investigating a robbery.   Defendant having reported that he had been “jumped” on the street, there was nothing coercive or intimidating in a police officer approaching him and asking him about the incident.

Relying on our Supreme Court's recent holding under the New Jersey constitution in State v. O'Neill, 193 N.J. 148 (2007), defendant argues that the police employed a prohibited “question first, warn later” approach to eliciting incriminating statements from him.   In O'Neill, the Court held that, if the police first question a suspect in custody without Miranda warnings and issue the warnings only after eliciting incriminating statements, the statements made after the Miranda warnings may be inadmissible at trial.  Id. at 154-55, 179-80.  “[W]hen Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination.”  State v. Nyhammer, 197 N.J. 383, 403, cert. denied, _ U.S. _, 130 S.Ct. 65, 175 L. Ed.2d 48 (2009).

The holding of O'Neill, however, only applies when the original questioning was custodial and therefore required that Miranda warnings be given.   As we have stated, Officer Ponticello's question was not during custodial interrogation of defendant.   In addition, unlike O'Neill, the pre-warning question here was a single question and it was non-accusatory.   We conclude that O'Neill has no application to the facts of this case.

Finally, defendant's statements to Detective Crosby were not the fruit of his single answer to Officer Ponticello.   First, defendant's answer that he had been “jumped” was not incriminating in itself but a false exculpatory statement.   Second, defendant had already made that statement to the hospital staff, and a nurse had conveyed the information to Officer Ponticello.   Therefore, defendant's answer to the officer was not the source of the further investigation by the police resulting in his subsequent statements.   Defendant's statements were admissible in evidence.

Next, defendant argues that the trial judge violated his due process rights by questioning him before the jury in an adversarial manner and conveying the impression to the jury that the judge found defendant's testimony lacked credibility.   Because defendant did not object at trial to the judge's questioning, the plain error standard of review applies to this contention.   R. 2:10-2.   The error must be of sufficient magnitude “to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.”  State v. Macon, 57 N.J. 325, 336 (1971).

In his testimony, defendant testified that, on the night of the robbery, he had been at a bar across the street from the deli.   He went to the deli to get some food, intending to return to the bar and watch a football game.   He testified that he walked in on the robbery, attempted to help the victims, was stabbed, and then went outside and got a ride to the hospital.   The trial judge questioned defendant about that testimony as follows:

Court:  The bar is across from the deli?

Defendant:  Yes

Court:  Right across the street or how -

Defendant:  Right across the street.

Court:  When you went from the bar to the deli, did you see the guy that you saw with the gun going into the deli?

Defendant:  No, because it was raining, and cars was coming by so, no.

Court:  Did you see anybody enter the deli immediately before you?

Defendant:  No.

Court:  When you left the deli, where was the lady with the car that drove you?   How far from the bar-how far from the store, rather?

Defendant:  Right around the corner.

Court:  Is there any reason you didn't run to the bar to get help after you were stabbed?

Defendant:  No, because I was looking for the police car.

Court:  You said that.

Defendant:  And my adrenaline was rushing.

Court:  I'm sorry.

Defendant:  My adrenaline was rushing.

Court:  Speak louder so the jury can hear you.

Defendant:  My adrenaline was rushing, what I did was run around the corner to my neighborhood where I used to live at and found somebody getting into their car.   And I asked them could they take me to the hospital, and they said yes.

Court:  All right, well, why didn't you go to the bar?   That's the question.   It was across the street and you just came from there.

Defendant:  It wasn't on my mind.

In his charge to the jury, the trial judge included instructions that his questions were not to be viewed as “key” questions but were intended as “follow-up” if the judge perceived that jurors could benefit from clarification.

After the trial of this case, the Supreme Court issued its decision in State v. Taffaro, 195 N.J. 442, 450-54 (2008), reiterating disapproval of a judge's questioning of a defendant before a jury in a manner that conveys that the defendant's testimony is not credible.   In Taffaro, the Court found plain error where the judge's questioning in a closely contested charge of contempt of a restraining order required credibility determinations between the defendant's version and the version of two other witnesses.

In this case, only one or two of the quoted questions of the judge skirt the line drawn in Taffaro.   But unlike Taffaro, the evidence against defendant was overwhelming, and defendant's testimony was so obviously fabricated that the judge's questioning could not have affected the outcome.   Defendant was identified as one of the robbers by the victims of the robbery, who knew him as a frequent customer.   Half an hour after the robbery, defendant was being treated in a hospital emergency room with wounds that matched those inflicted by the victims.   He had given a false name and a false exculpatory explanation of the source of the wounds at the emergency room.   His second version of the source of the wounds, that he was attempting to help the victims ward off the robber, was completely contrary to the reports from the victims, that the taller man had entered the deli with a mask and had punched the owner and fought with another employee before being stabbed.   Furthermore, defendant did not stay to speak to the police after the robbery, and he knew about the robbery and discussed it in the hospital before the police ever mentioned it.   The judge's questioning of defendant, about his explanation for getting a ride to the hospital rather than returning to the bar, was not “of such a nature as to have been clearly capable of producing an unjust result.”  R. 2:10-2.

Defendant argues next that the trial court erred in instructing the jury that his use of a false name at the emergency room could be considered as relevant to a consciousness of guilt.   In his testimony at trial, defendant said that he used the name Shamar Mason rather than his true name at the hospital because he had unpaid hospital bills.   Over defense counsel's objection, the trial judge instructed the jury as follows:

Let me touch upon the false name issue that came up during the course of trial.   The testimony, if you accept it, was that [defendant] gave a false name to the hospital when he originally went there for treatment.   So I charge you there has been testimony in the case from which you could determine that [d]efendant ․ gave a false name at the same time of arrest.

It says arrest here.   It's at the time of going to the hospital, not at the time of arrest.   I think it was pointed out that when he was with the police, he gave his true name and indicated he gave a false name to the hospital.   When that actually happened, I'm not sure.   It's for you to consider the reasons for it.   Again, for your consideration, why was it done, how was it explained.   I'm not going to go over that testimony.   That was received by you.   You will factor that in.

But I will charge you that the question of whether [defendant] gave a false name is another question of fact for your determination.   If you find that he, fearing that an accusation or that an arrest would be made in the future, gave a false name, then you may consider the providing of a false name in connection with all other evidence in the case as an indication of consciousness of guilt.

Defendant acknowledges that conduct occurring after the alleged crime can be relevant to prove that defendant knew he was guilty of the crime.   See State v. Williams, 190 N.J. 114, 125 (2007);  State v. Mann, 132 N.J. 410, 419 (1993);  State v. Rechtschaffer, 70 N.J. 395, 413-15 (1976).   Defendant's belief in his own guilt can be relevant to prove his identity as the person who committed the crime or his state of mind in the commission of the crime.   In particular, providing a false name to the police can be evidence of consciousness of guilt.  State in the Interest of J.R., 244 N.J.Super. 630, 636 (App.Div.1990);  State v. Johnson, 216 N.J.Super. 588, 612 (App.Div.), 107 N.J. 647 (1987).

Defendant argues that the cited cases are not applicable to the circumstances of this case because he gave a false name at the hospital, not to the police.   We see no significant distinction.   Having been wounded in the course of committing a robbery, defendant could have attempted to avoid apprehension by concealing his identity at the hospital.   There was no abuse of the trial court's discretion in finding the evidence sufficiently relevant to charge the jury that it could consider it in this case.

Last, defendant argues that his twelve-year sentence was excessive.   We will not be detained long on this argument.   Defendant was convicted of a first-degree crime, for which the statutory range of sentencing was ten to twenty years.   The sentence imposed was at the low end of the range.   The application of the No Early Release Act, N.J.S.A. 2C:43-7.2, was mandated by that statute.   Clearly, the sentence was within the court's discretion.   See State v. Bieniek, 200 N.J. 601, 611-12 (2010);  State v. Roth, 95 N.J. 334, 364-66 (1984).

With respect to defendant's arguments regarding the finding of specific aggravating and mitigating factors, we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(2);  see Bieniek, supra, 200 N.J. at 608-09.

Affirmed.

FOOTNOTES

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM