State v. Sims

466 N.J.Super. 346

246 A.3d 814

STATE of New Jersey, Plaintiff-Respondent,

v.Anthony SIMS, Jr., Defendant-Appellant.

DOCKET NO. A-2641-17T2

Superior Court of New Jersey, Appellate Division.

Submitted October 19, 2020

Decided January 4, 2021

Recalled February 4, 2021.¹

Resubmitted February 4, 2021

Decided February 4, 2021

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Maura K. Tully, Assistant Prosecutor, of counsel and on the brief).

Before Judges Rothstadt, Mayer and Susswein (Judge Susswein concurring in part and dissenting in part).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

This appeal requires us to determine as a matter of first impression whether the Supreme Court's holdings in State v. A.G.D., 178 N.J. 56, 835 A.2d 291 (2003), and State v. Vincenty, 237 N.J. 122, 202 A.3d 1273 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his Miranda ² rights, also apply to an interrogee who was arrested and questioned prior to any charges being filed, where the arrest was based upon information developed through an earlier police investigation. As explained in our opinion today, we hold that the same requirement applies because without being correctly informed of the crime for which he was arrested, a defendant cannot knowingly and intelligently waive his right against self-incrimination.

Defendant Anthony Sims, Jr. appeals from his conviction by jury of having committed attempted murder and violating weapons offenses, and from his aggregate fifty-year sentence. On appeal, he argues the following points:

POINT I

BECAUSE AN ARRESTEE CANNOT KNOWINGLY WAIVE HIS MIRANDA RIGHTS IF THE AUTHORITIES DO NOT EXPLAIN WHY HE IS BEING ARRESTED; IT WAS ERRONEOUS FOR THE TRIAL COURT TO ADMIT [DEFENDANT'S] STATEMENT AT TRIAL.

POINT II

ALL EVIDENCE OBTAINED FROM THE UNCONSTITUTIONAL QUESTIONING OF [DEFENDANT] MUST BE EXCLUDED AS THE FRUIT OF THE POISONOUS TREE.

POINT III

[DEFENDANT'S] SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER WAS VIOLATED BY THE TRIAL COURT'S RULING THAT PERMITTED THE STATE TO ADMIT THE VICTIM'S TESTIMONY AT THE WADE HEARING AS SUBSTANTIVE EVIDENCE OF [DEFENDANT'S] GUILT.

POINT IV

BECAUSE THE ADMISSION OF A PRIOR INCONSISTENT STATEMENT DUE TO FEIGNED MEMORY IS ONLY ADMISSIBLE IF THE WITNESS FEIGNS A LOSS OF MEMORY IN FRONT OF THE JURY; IT WAS ERRONEOUS FOR THE TRIAL COURT TO ADMIT THE VICTIM'S WADE HEARING TESTIMONY AT TRIAL, WHICH INCLUDED HIS PRIOR STATEMENT TO THE POLICE.

POINT V

THE PROSECUTOR COMMITTED MISCONDUCT AT THE END OF HER SUMMATION BY STATING THAT "YOU CAN HOLD [DEFENDANT] ACCOUNTABLE FOR TAKING THAT COMMUNITY, THAT NEIGHBORHOOD, AND TURNING IT INTO HIS OWN PERSONAL CRIME SCENE (BY RENDERING A GUILTY VERDICT)." (NOT RAISED BELOW).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Having considered defendant's contentions in light of the record and the applicable principles of law, we reverse the denial of his motion to suppress his statement because defendant was not properly advised of the status of the charges against him prior to his interrogation. We also conclude that the trial court erred by admitting the victim's statement to police through hearsay testimony as defendant was deprived of a meaningful opportunity to challenge the victim's statement at a pretrial hearing or before the jury.

I.

The facts pertinent to this appeal as derived from the trial record are summarized as follows. On April 9, 2014, a man was struck by twelve bullets while sitting in his car in his grandmother's driveway at her home in Red Bank. The victim's grandmother heard the shots followed by her grandson calling for her to help.

The grandmother ran outside and found the victim partially hanging out of the passenger side of his vehicle and bleeding profusely. She asked him, "Who did this to you?" He answered, "Sims." She asked, "Who is Sims?" He answered, "BJ's brother." She knew BJ by his name, R.P., as he and her grandson had been childhood friends and had spent many nights at her house.³

Red Bank Police Department (RBPD) Patrolman Benjamin Springer responded to the scene and provided emergency medical assistance to the victim, who was conscious but appeared to be going into shock. Lieutenant Robert Clayton of the RBPD arrived soon after and asked the victim, who the officer had known for fifteen years, to tell him who had shot him. The victim put his face down toward the ground, said he did not know, and did not answer further even though his grandmother encouraged him to respond. His grandmother then told Clayton that the victim had said it was one of BJ's brothers.⁴

Emergency medical personnel soon arrived and transported the victim to the hospital where he was treated for his life-threatening wounds. After undergoing several surgeries and spending a number of days in the intensive care unit, the victim was released from the hospital on April 30, 2014.

Prior to the victim leaving the hospital, RBPD Detective Robert Campanella and Monmouth County Prosecutor's Detective Brian Weisbrot interviewed him for almost three hours on April 13. According to Weisbrot, the victim was "scared" but agreed to give a statement. He required pain medication throughout the interview. Nevertheless, during the interview the victim was "cooperative," "alert, oriented, and in control" and eventually identified a photo of defendant and signed the back, confirming it was defendant who had shot him. The victim also signed a copy of his statement that had been typed up while he spoke to the detectives.

In his April 13 statement, the victim recalled sitting in his blue Chevy Camaro in his grandmother's driveway talking on the phone to his friend E.R. when he noticed a man to his left crouched down holding a "black semi-automatic" and pointing it at him. The gunman fired "three or four" bullets through the driver's window. The victim remembered telling E.R. as it was happening to call the police.

The victim also said "[t]he minute I looked at [the gunman] I knew what it was and I knew who it was, [defendant,] Anthony Sims, Jr." The victim said he had "always known [defendant] through [defendant's] brother BJ." He described defendant as a "[b]lack guy" with a "medium" build who stood "about 5-8 or 5-9."

"He was wearing a dark sweatshirt with his hoodie up. The hood was pulled tight but [the victim] could immediately recognize him." When asked if he knew why defendant had shot him, the victim answered: "Yeah, me and BJ had a falling out, and me and BJ were supposed to fight. BJ and [defendant] are brothers." The victim then identified the photo of defendant. He also said that defendant had a girlfriend named A.M.

The next day, Weisbrot and Campanella arrested defendant. According to Campanella, he and Weisbrot "advised [defendant that] he was being placed under arrest." The officers "secured him in handcuffs, patted him down, and told him [he] would be transport[ed]" to an Asbury Park satellite office. They did not advise defendant why they were arresting him or about any charges filed against him.

Defendant asked why he was under arrest, and Campanella told him they "would get into the details" when they got to the Asbury Park office. According to the detective, "at this point in time," "[n]o specific charges" had been filed against defendant, but he had been placed under arrest. No further discussions occurred during the drive to the office. When they arrived at the satellite office, defendant was placed in an interview room with a video recording device. Using a Miranda form, the officers advised defendant of his rights, and he initialed each page and signed the form agreeing to waive them. According to Campanella, when defendant was arrested and asked to waive his rights, the officers did not tell him that he was arrested for attempted murder.

As defendant was going through the form, Weisbrot told defendant he was "under arrest. I'm sure you have a ton of questions. I'll be happy to get into all that, okay, in just a few minutes. Let's just finish this form. Okay?" After the form was completed, there were no additional conversations during the interrogation about the potential charges against him. Defendant proceeded to answer the detectives' questions.

In his statement, defendant told the officers that he lived in Long Branch with his mother and that he had a five-year-old daughter with A.M., who lived in Neptune. He did not drive, so his mother and A.M. gave him rides. A.M. drove a blue Ford Explorer. He also confirmed that he had two brothers, R.P. who was known as BJ, and C.S.

Defendant denied having any "type of issue" with anyone from Red Bank. He denied knowing anything about "an incident" in Red Bank, but then said that he had read a newspaper article regarding the recent shooting of the victim. Defendant denied knowing the victim and anyone in his family, but then he admitted that he knew him by his first name but had not known his last name. He described the victim as a "tall guy" with a complexion similar to his own. Without identifying the victim's brother, Weisbrot asked: "What about [the victim's] brother?" and defendant answered: "I don't really see him. He's not really around." Defendant denied having any kind of relationship with the victim or his brother but said he knew them "from being in the projects."

When asked if defendant's brother C.S. was "involved with them," defendant answered that his brother "never really came outside too much to be involved in the activities that I was involved in." Defendant denied knowing anything about an issue that anyone in his family may have had with the victim and specifically denied knowing that BJ and the victim had a falling out. He said BJ would have shared that type of information with him.

After some time, Weisbrot and Campanella...