NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6123-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME L. FAUCETTE, a/k/a

LEROY DANIEL THOMAS,

Defendant-Appellant.

_______________________________

Submitted September 15, 2014 - Decided 

Before Judges Lihotz, Espinosa and 

Rothstadt.

On appeal from the Superior Court of New 

Jersey, Law Division, Burlington County, 

Indictment No. 08-08-0865. 

Joseph E. Krakora, Public Defender, attorney 

for appellant (Frank M. Gennaro, Designated 

Counsel, on the brief).

John J. Hoffman, Acting Attorney General, 

attorney for respondent (Jane C. Schuster, 

Deputy Attorney General, of counsel and on 

the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by 

LIHOTZ, P.J.A.D.

In reviewing the Law Division's order denying defendant's 

motion to suppress his custodial statement, we consider not only 

January 15, 2015

APPROVED FOR PUBLICATION

January 15, 2015

APPELLATE DIVISION
2 A-6123-11T3

whether defendant's statement was voluntarily and knowingly 

made, but also whether the fourteen-day break-in-custody period 

following a defendant's invocation of the right to counsel,

announced in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 

175 L. Ed. 2d 1045 (2010), and applied by our Supreme Court in

State v. Wessells, 209 N.J. 395 (2012), must also be applied

when a defendant invokes the right to remain silent. In 

Shatzer, the United States Supreme Court specifically recognized 

an enhanced protective period must follow a break in custody 

caused by a suspect's invocation of the right to counsel. We 

conclude such an extensive period of protection need not

accompany a break in custody caused by a defendant's request to 

cease the interrogation. 

Defendant Jerome L. Faucette was charged under Indictment 

No. 08-08-0865 with first-degree offenses of felony murder, 

N.J.S.A. 2C:11-3(a)(3) (count one); and robbery, N.J.S.A.

2C:15-1 (count two). The charges stem from an incident 

occurring on April 14, 2008, when defendant acted as the driver 

for co-defendant Terrance S. Clemons, who robbed and shot a gas 

station attendant. Following trial, a jury acquitted defendant

of felony murder, but found him guilty of first-degree robbery. 

Defendant was sentenced to thirteen years in prison, subject to 
3 A-6123-11T3

the 85% parole ineligibility period required by the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals from his conviction and sentence arguing: 

POINT ONE

DEFENDANT'S MAY 15, 2008 STATEMENT WAS NOT 

THE PRODUCT OF A VOLUNTARY, KNOWING, AND 

INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN 

SILENT AND, THEREFORE, SHOULD HAVE BEEN 

SUPPRESSED BY THE TRIAL COURT.

A. Waiver of Miranda Rights.

B. Defendant Invoked his Right to Remain 

Silent.

C. Fruit of the Poisonous Tree.

POINT TWO

THE PUBLICATION TO THE JURY OF GRAPHIC 

AUTOPSY PHOTOGRAPHS, WHICH WERE NOT ADMITTED 

INTO EVIDENCE, WAS ERROR WHICH UNDULY 

PREJUDICED DEFENDANT.

POINT THREE

THE TRIAL COURT WRONGFULLY DENIED 

DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT FOUR

DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

In a separately filed supplemental brief, defendant presents

these issues: 

ISSUE I

APPELLANT'S CONVICTION FOR FIRST DEGREE 

ROBBERY ON BASIS OF ACCOMPLICE LIABILITY 

THEORY REQUIRES REVERSAL FOR INSUFFICIENCY 

OF EVIDENCE.

ISSUE II

THE TRIAL COURT'S JURY INSTRUCTIONS ON 

ACCOMPLICE LIABLITY FOR FIRST DEGREE ROBBERY 
4 A-6123-11T3

WERE INSUFFICIENT, DEFECTIVE AND ERRONEOUS 

AND THE ERROR WAS SO FUNDAMENTAL AS TO 

CONSTITUTE PLAIN ERROR (PLAIN ERROR).

ISSUE III

DEFENDANT'S MAY 15, 2008 STATEMENT WAS THE 

PRODUCT OF PSYCHOLOGICAL COERCION AND WAS 

NOT THE PRODUCT OF A VOLUNTARY, KNOWING AND 

INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN 

SILENT AND THEREFORE SHOULD HAVE BEEN 

SUPPRESSED BY THE TRIAL COURT.

Following our review of these issues, in light of the 

record and the applicable law, we affirm.

I.

In Point One and Issue III, defendant challenges the 

voluntariness of his custodial statements. These facts are 

taken from the record of the three-day Miranda1 hearing, during 

which Detective Stephen Craig was the sole witness and the State 

admitted DVD recordings of defendant's custodial interviews. 

On May 14, 2008, Detective Craig and another police

detective met defendant at his place of employment around 7:00

p.m. and asked if he would come with them for questioning. Once 

at the police station, the detectives advised defendant of his 

Miranda rights. 

At approximately 8:00 p.m., defendant stated he "d[id not] 

want to be [t]here" and "[he] want[ed] to be at work working, go 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).
5 A-6123-11T3

home and get in [his] bed and then wake up and do the whole same 

thing again." Thereafter, he asserted, "I ain't going to talk 

[to] you I just want to leave, my God," and "I'm done talking 

yo." Despite these protests, which were repeated, Detective 

Craig continued the interrogation, which lasted for seven hours. 

Police did not charge defendant and drove him home at 

approximately 2:30 a.m. 

That same day, police returned to defendant's home at 

approximately 4:30 p.m. and asked him to accompany them to the 

prosecutor's office. Police had requested a warrant for 

defendant's arrest, which had not yet been issued. Defendant 

agreed to go with the officers and his mother followed in her 

car. Defendant's mother stayed in the lobby, while defendant 

was taken into an interview room. 

Detective Craig advised defendant of his Miranda rights, 

"read[ing] them aloud from a standard Miranda card," which 

defendant signed and dated.2 Upon receipt of the warrant, he 

also informed defendant he was under arrest for "murder and 

. . . related offenses" and provided a copy of the warrant 

reflecting the charges. The detectives also confronted 

defendant with information police had gathered from other 

witnesses since defendant's earlier interview.

 

2 Defendant did not execute a waiver of his Miranda rights.
6 A-6123-11T3

Specifically, Detective Craig learned Detective Brian

Weisbrot, the lead investigator on the case, questioned Ms.

Spencer, defendant's former girlfriend, and Mr. Gaddy,3 defendant's 

friend. Spencer told police defendant admitted he and Clemons 

were involved in the robbery and shooting. Spencer then 

revealed this to Gaddy, who confirmed what she had told him.

Defendant responded emotionally to this news, screaming, 

crying, protesting his innocence, insisting he was telling the 

truth and pacing around the room. After calming down, and upon 

further police interrogation, defendant described his role in 

the gas station robbery and killing. Defendant admitted he knew 

Clemons intended to rob the gas station because he told him 

"it's easy . . . it's an easy spot to go get." Despite 

initially declining, defendant agreed to "just drive [Clemons] 

around." At 11:00 p.m., he dropped Clemons off at the gas 

station, and waited in his vehicle for Clemons to "go[] and do[] 

it." Clemons returned to the car and during the drive back, 

told defendant "he shot the guy," meaning the attendant, stating 

"[he] shot him in his leg and then he was on the ground and he 

. . . just shot him" in the head. The victim later died of the 

inflicted gunshot wounds. 

 

3 Mindful that our opinion will be posted on the internet, we 

have omitted the full names of witnesses wherever possible to 

protect their privacy.
7 A-6123-11T3

Defendant told police, shooting the attendant was not part 

of the plan. He insisted "[he] didn't know [Clemons] had a gun 

on him" and told detectives he did not take any of the proceeds 

of the robbery. When asked if Clemons wore a mask, defendant 

responded Clemons had a "bulgy pocket," which he thought "could 

have had a mask in there . . . ." Defendant also recounted 

driving Clemons to his girlfriend's house after the shooting,

and encountering Spencer, who he told about the robbery,

including how "[Clemons] shot somebody."

Throughout the interview, defendant did not appear to be 

under the influence of alcohol or controlled substances, nor did 

he display "visual signs of injury or any complaint of any type 

of injury that would have precluded [the police] from speaking 

with him." Detective Craig noted defendant, "appeared to be 

well rested," "cognizant of the communications [the detectives] 

were having with him" and to understand the rights as explained 

to him. According to Detective Craig, defendant declined to 

invoke his right to remain silent and agreed to answer questions 

without an attorney present. 

In a written statement accompanying his order, the Law 

Division judge credited Detective Craig's testimony. The judge 

found, in the first meeting with police, defendant expressed a 

desire to end the interview after one hour of questioning. 
8 A-6123-11T3

Thereafter, the interview "bec[ame] an interrogation" and 

"continued in a persistent, relentless fashion" and was "laced 

with . . . defendant's continued protestations . . . ." Thus, 

the court found "[p]atently, beginning at 8:03 p.m., the 

detectives failed to comply with the dictates of Miranda," a 

point the State conceded. 

Nevertheless, despite the "flagrant" Miranda violations on 

May 14, the "extensive" questioning that night "did not deprive 

. . . defendant of the normal use of his faculties, nor did it 

constitute psychological manipulation that diminished his free 

will," when questioned a second time. Regarding the second 

interview, the trial court made the following factual findings:

Initially, . . . defendant, often 

screaming or crying, denied any involvement 

or saying anything to Spencer about the gas 

station crimes. The detectives confronted 

. . . defendant with his inconsistent 

statements or failure to disclose, while 

prying from him gradual admissions of 

involvement. At no time did he make any 

request, even a subtle one, to terminate the 

interrogation or to have a lawyer. Although 

he probably had no more than five hours 

sleep the previous night, he exhibited no 

signs of sleep deprivation, mental 

incapacity or being physically overwhelmed.

Mid-way through the interrogation, the 

defendant, becalmed, gave narrative 

statements during an eight-minute segment, 

admitting that he served as the driver for 

Clemons who committed a robbery at the . . . 

gas station, and the later robbery-murder at 

the . . . [g]as station. Throughout the 
9 A-6123-11T3

balance of the interrogation . . . defendant 

was calm and cooperative.

The judge reasoned that neither the length of the 

interviews nor their proximity in time nullified the 

voluntariness of defendant's statements made in the second 

interview. The judge found statements in that interview were 

voluntarily made, as "[a] review of the recorded interrogations 

reveal[ed] a defendant of normal intelligence, free of any 

indicia of influential alcohol or medications, able to 

understand the questions posed and respond to them." Moreover, 

the judge determined defendant's May 15 statement did not 

constitute "fruit of the poisonous tree," noting he was again 

read his Miranda rights prior to the second interview; the 

interviews were separated by more than fourteen hours; and 

defendant was confronted with additional evidence at the later 

interview. Accordingly, the judge concluded "[t]he record 

reflect[ed] compliance with Miranda" during the May 15 

interview, as "defendant made no request to terminate 

questioning or ask for a lawyer." 

The December 14, 2011 order suppressed defendant's 

statements made after 8:03 p.m. on May 14 until the early 

morning hours of May 15. However, the balance of defendant's 

statements to police were deemed admissible, including his May 
10 A-6123-11T3

15 disclosure of his role in the crime made after a second 

issuance of Miranda warnings. 

The principal issue on appeal is whether, examining the 

totality of the circumstances, defendant's second custodial 

statement was freely and voluntarily given. Defendant argues 

his admission "was extracted in violation of [his] right to 

remain silent" and contends it was the "product of government 

coercion[,] which . . . overcame [his] will." Defendant also 

posits the judge erred because the initial questioning, which 

the State conceded violated Miranda's protections, "cannot 

neatly be separated" from the subsequent interview, rendering 

any statements made during this latter interview "fruit of the 

poisonous tree." 

"[A] finding of compliance with Miranda and voluntariness 

turn[s] on factual and credibility determinations . . . ." 

State v. W.B., 205 N.J. 588, 603 n.4 (2011). In our review, we 

determine whether there is "sufficient credible evidence in the 

record to sustain the trial judge's findings and conclusions." 

Ibid. If so, our "task is complete and [we] should not disturb 

the result . . . ." State v. Johnson, 42 N.J. 146, 162 (1964). 

In our review, we defer to the trial judge's factual findings 

that are "'substantially influenced by his [or her] opportunity 

to hear and see the witnesses and [develop a] feel of the case, 
11 A-6123-11T3

which a reviewing court cannot enjoy.'" State v. Davila, 203 

N.J. 97, 109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161)

(internal quotation marks omitted). However,

when the trial court's sole basis for its 

findings and conclusions is its evaluation 

of a videotaped interrogation, there is 

little, if anything, to be gained from 

deference. In that circumstance, . . . 

appellate courts are not confined to a 

review of a transcript nor obliged to defer 

to the trial court's findings, but may 

consider the recording of the event itself.

[State v. Diaz-Bridges, 208 N.J. 544, 565-66 

(2011) (citing State v. Alston, 204 N.J. 

614, 626 n.2 (2011)).]

Importantly, if necessary, this court will not "hesitate to 

make new fact findings on the record in a situation where the 

findings are not exclusively factual but intertwined with legal 

conclusions drawn from the Miranda case and its progeny." State 

v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974) (citing 

State v. Yough, 49 N.J. 587, 596 (1967)), aff'd, 67 N.J. 80 

(1975). Generally, if "a trial court's findings [are] so 

clearly mistaken 'that the interests of justice demand 

intervention and correction[,]' . . . an appellate court 

properly reviews 'the record as if it were deciding the matter 

at inception and make[s] its own findings and conclusions.'" 

State v. Hreha, 217 N.J. 368, 382 (2014) (quoting Johnson, 

supra, 42 N.J. at 162). Further, we are not bound by a trial 
12 A-6123-11T3

court's resolution of legal issues, which remain subject to our 

de novo review. State v. Shaw, 213 N.J. 398, 411 (2012). 

Defendant's constitutional challenge invokes his right to 

remain silent. "The Fifth Amendment privilege against selfincrimination, made applicable to the states through the 

Fourteenth Amendment, provides that '[n]o person . . . shall be 

compelled in any criminal case to be a witness against 

himself.'" State v. P.Z., 152 N.J. 86, 100 (1997) (quoting U.S. 

Const. amend. V). Under New Jersey law, "the right against 

self-incrimination is founded on a common-law and statutory 

. . . basis," but similarly establishes "'no person can be 

compelled to be a witness against himself.'" State v. Reed, 133 

N.J. 237, 250 (1993) (citation omitted). Attendant to this

right is the "absolute right to remain silent while under police 

interrogation . . . ." Ibid. 

Because the privilege against self-incrimination is not 

self-implementing, the right is safeguarded through the use of 

Miranda's "'prophylactic-procedural safeguards . . . .'" State 

v. Knight, 183 N.J. 449, 461 (2005) (quoting State v. Burris, 

145 N.J. 509, 520 (1996)). Without question, "[c]onfessions 

obtained . . . during a custodial interrogation are barred from 

evidence unless the defendant has been advised of his or her 

constitutional rights." Ibid. (citing Miranda, supra, 384 U.S.
13 A-6123-11T3

at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). Moreover, it 

is the State which bears the burden of "prov[ing] the 

voluntariness of a confession beyond a reasonable doubt." State 

v. Galloway, 133 N.J. 631, 654 (1993).

Our "inquiry begins with whether the suspect invoked his or 

her right to remain silent." Diaz-Bridges, supra, 208 N.J. at

564. "'If [an] 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.'" State v. 

Hartley, 103 N.J. 252, 263 (1986) (quoting Miranda, supra, 384 

U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723). 

"Although a clear assertion of [the] right must of course be 

scrupulously honored, officers confronted with an ambiguous 

invocation are authorized to make inquiry in order to clarify 

the suspect's intent." Diaz-Bridges, supra, 208 N.J. at 569. 

As it relates to the invocation of the right 

to remain silent, both the words used and 

the suspect's actions or behaviors form part 

of the inquiry into whether the 

investigating officer should have reasonably 

believed that the right was being asserted. 

As a result, the court's inquiry necessarily 

demands a fact-sensitive analysis to discern 

from the totality of the circumstances 

whether the officer could have reasonably 

concluded that the right had been invoked.

[Id. at 565.]
14 A-6123-11T3

When assessing the validity of a defendant's waiver of his 

right to remain silent, a court considers the totality of the 

circumstances, including both the characteristics of the 

defendant and the nature of the interrogation. Ibid. 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." Galloway, supra, 133 N.J. at 654. 

In this matter, defendant maintains "during the May 15[] 

interrogation, he both clearly and equivocally invoked his right 

to remain silent, and . . . therefore, the police should have 

terminated the interrogation." For support, he emphasizes that 

when the second interview commenced, he expressed an 

unwillingness "to be here." Defendant presents several reasons 

he believes demonstrate his statement was involuntary. We have 

considered and rejected each of these arguments.

The important facts influencing our review are repeated. 

Defendant willingly accompanied police to the prosecutor's 

office for further questioning. He rode with police, 

unrestrained, and was taken to an interview room. Defendant was 

left alone for a few minutes, then Detective Craig and his 

colleagues entered the room and read defendant his rights. 
15 A-6123-11T3

Defendant initialed the Miranda card, acknowledged it was read 

to him and noted he understood the rights, including the right 

to remain silent and the right to terminate questioning at any 

time. By then, Detective Craig had obtained the arrest warrant 

and told defendant he was charged with armed robbery and murder. 

Defendant initially could not control his emotions. He 

repeatedly denied culpability and insisted he had been truthful 

and Spencer was lying. However, as police revealed the evidence 

gathered, defendant changed his position and began to relate 

those facts evincing his participation. Detective Craig 

informed defendant both Clemons and Spencer had implicated him. 

He revealed Spencer's statement included the number of times and 

locations where the attendant was shot, information not made 

public, and only available to Spencer because defendant had told 

her. Detective Craig repeated he had no interest in defendant's 

denials, assertions of ignorance or attempts to minimize his 

involvement in the incident. He said he did not believe 

defendant's claims and gave him "one last chance" to state his 

involvement and provide new information. At that point 

defendant confessed.

Defendant never requested the questioning cease. More 

important, he never invoked his right to counsel. Rather, he 

continued the interview, offering the events as he knew them. 
16 A-6123-11T3

As the conversation continued, defendant gradually admitted he 

drove Clemons and "dropp[ed] him off" at the service station. 

Defendant admitted he asked Clemons "what he was going to do," 

and Clemons responded, "I'm about to go get some money." He 

also told the detectives, Clemons said "he shot the man and he 

probably killed him." 

As the trial judge noted, defendant, although emotional 

and, at times crying and screaming because he was arrested and 

going to jail, never exhibited fatigue, confusion or any 

inability to comprehend what was happening. He understood his 

rights, understood he was charged with first-degree offenses and 

clearly understood police spoke to Clemons and Spencer. Police 

never threatened or coerced defendant; they told defendant they 

thought he was lying, believed he was involved and suggested he 

look out for himself. When told he had one last chance to tell 

the truth, defendant sat calmly and clearly responded to the 

detectives' questions. 

Reviewing the DVD and Detective Craig's testimony, we 

concur with the trial judge that defendant did not invoke his 

right to remain silent. He was not coerced, but ultimately 

convinced to confess his role to aid his self-interests. He was 

calm and related detailed information in response to the

detectives' inquiries. Considering the words used and 
17 A-6123-11T3

defendant's behaviors as depicted on the DVD, we find defendant 

waived his right to remain silent. See Diaz-Bridges, supra, 208 

N.J. at 565. Accordingly, we conclude he knowingly and 

voluntarily provided his statement of his role in the crimes and 

interaction with Clemons on April 14, 2008. 

Addressing defendant's contention he lost his ability to 

make "an intelligent evaluation of the situation and [form] a 

voluntarily intention to make a statement without the assistance 

of counsel" after being told he was charged with murder, we are 

not persuaded. "[T]he fact that [a] defendant was distressed 

and emotional is not by itself sufficient to render his [or her] 

confession involuntary." Galloway, supra, 133 N.J. at 657. 

Defendant argues his confession was "the product of 

intimidation, coercion and deception," as police capitalized on 

his fear of Clemons' retaliation against him or his mother, 

essentially forcing him to talk. He cites as a threat, 

Detective Craig's comment he would "drop [him] downstairs," 

meaning take him to the county jail where Clemons was being 

detained, "if he didn't start talking." 

Having considered the events depicted on the DVD, we reject 

defendant's argument as lacking merit. Use of psychological 

tactics is not prohibited. Miller v. Fenton, 796 F.2d 598, 605 

(3d Cir. 1986). "Unlike the use of physical coercion, . . . use 
18 A-6123-11T3

of a psychologically-oriented technique during questioning is 

not inherently coercive." Galloway, supra, 133 N.J. at 654. 

Such ploys may "play a part in the suspect's decision to 

confess, but so long as that decision is a product of the 

suspect's own balancing of competing considerations, the 

confession is voluntary." Miller, supra, 796 F.2d at 605. Cf.

State v. Patton, 362 N.J. Super. 16, 32 (App. Div.) ("[A] police 

officer in the interrogation process may, by the officer's 

statements, make misrepresentations of fact or suggest that 

evidence in the form of reports or witnesses exist that will 

implicate a suspect."), certif. denied, 178 N.J. 35 (2003). 

Here, no physical force or threats of same were made. The 

interview was not lengthy, lasting a little more than an hour.

During the interrogation, there were no signs defendant was 

fatigued, confused or under the influence of intoxicating 

substances. Detective Craig's comments expressed frustration 

with defendant's changing story, but the remark "[w]e're not 

offering to do anything for you other than drop you downstairs 

in the middle of the population and you fend for yourself," 

merely stated police responsibility to effectuate the arrest 

warrant and place defendant in jail. 

As to the police discussion of Clemons' past violence and 

affiliation with a gang, these facts were known to defendant, 
19 A-6123-11T3

who admitted he had known Clemons for a long time. Police 

acknowledgement and discussion of these facts was not the "'very 

substantial' psychological pressure[]" necessary for finding a 

defendant's will was overborne. State v. Cook, 179 N.J. 533, 

563 (2004). Accordingly, we reject the notion Detective Craig's 

comments acted to "strip[] defendant of his capacity for selfdetermination and actually induce the incriminating statement 

. . . ." State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div. 

2005) (citation and internal quotation marks omitted). 

Defendant suggests requests to have his mother present in 

the room constituted equivocal assertions of his right to remain 

silent. We disagree.

Before Detective Craig informed him of the charges, 

defendant, who was age twenty-two, asked "[w]here's my mom," as 

he thought "my mom[] is gonna be here." Once informed of his

arrest, defendant exclaimed, "I thought you were going to be 

bringing my mom in here." Subsequent to revealing his role in 

the robbery, defendant requested "[c]an my mom be in here while 

. . . we do this, please?" At that point, Detective Craig 

replied "she's a little tied up right now," but later he would 

"take a break at a certain point [and he would] go find out 

where she's at [sic] . . . ." Toward the end of the interview, 

defendant again asked for his mother.
20 A-6123-11T3

The Court recently 

considered the analytical implications of 

requests by an adult to speak with someone 

other than an attorney, concluding that such 

requests do not imply or suggest that the 

individual desires to remain silent. See,

e.g., State v. Martini, 131 N.J. 176, 228-32 

(1993) (concluding that defendant's request 

to speak with paramour before "lay[ing] out 

his entire involvement" was not an 

invocation of right to remain silent); State 

v. Timmendequas, 161 N.J. 515, 616 (1999) 

(concluding that request to speak with 

housemate was not, under the circumstances, 

invocation of right to remain silent).

[Diaz-Bridges, supra, 208 N.J. at 567.]

The Court explained, "[a]lthough the mere request by an adult to 

speak with a parent does not equate to an invocation of the 

right to remain silent, it does necessitate a review of the 

context in which the request was made." Ibid. Often "it [is]

not the request to speak with the parent, but that request in 

the context of other facts that [gives] rise to the conclusion 

that the right to silence had been invoked." Id. at 568.

Here, defendant made an inquiry of his mother's whereabouts 

and repeated his belief she was to be present. Detective Craig 

told him he would check during a break and later advised 

defendant could see his mother before he was placed in jail. 

Nothing about defendant's requests reflect continuation of the 

conversation was contingent on his mother's presence. Rather, 

defendant's statements suggest a desire for support and cannot 
21 A-6123-11T3

be construed as an assertion of his right to remain silent. See

id. at 556, 572 (concluding the defendant's "frequent[] and 

fervent[]" expressions of his desire to speak with his mother 

over the course of a ten-hour interview did not amount to an 

invocation of his right to remain silent). 

Defendant's final suggestion is the judge mistakenly found 

he executed a waiver of his Miranda rights, which led to the 

erroneous conclusion his statement was voluntary. We are not 

persuaded. 

There was no written Miranda waiver executed. However, 

"[f]ailure to sign a form of waiver does not preclude a finding 

of waiver, nor does it make further questioning a violation of 

[a] defendant's constitutional rights." State v. Warmbrun, 277 

N.J. Super. 51, 62 (App. Div. 1994) (citation and internal 

quotation marks omitted), certif. denied, 140 N.J. 277 (1995). 

Defendant orally acknowledged he understood his rights, 

including the rights to not say a word and to cease the 

interview at any time. 

The trial judge's conclusions were made after considering 

the totality of the circumstances presented. State v. Nyhammer, 

197 N.J. 383, 402, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 

175 L. Ed. 2d 48 (2009). They were not based, as defendant 

suggests, on a mistaken factual finding he had executed a 
22 A-6123-11T3

written waiver. We determine the facts support the conclusion 

that defendant knew and understood his rights, which he 

intelligently, knowingly and voluntarily waived in admitting his 

culpability. 

Although not directly raised, we consider whether the 

minimum break in custody delineated in Shatzer and applied in 

Wessells must be imposed under these facts where the break in

custody occurs when a defendant seeks to end the interrogation. 

Following our review, we conclude it does not. Wessells adopted 

the rule announced in Shatzer, regarding custodial statements 

made following the invocation of the right to counsel. 

Wessells, supra, 209 N.J. at 413. In Shatzer, the United States 

Supreme Court recognized what had become known as an exception 

to the longstanding Edwards rule, which mandates interrogations 

cease once a suspect invokes the right to counsel, until counsel 

is provided or the suspect later re-initiates communication. 

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 

68 L. Ed. 2d 378, 386 (1981). Jurisprudence developed to 

consider a "break-in-custody exception" to the bright-line rule 

Edwards established, whereby the coercive taint of interrogation 

and presumptive involuntariness of statements made during 

reviewed interrogation were eliminated. Wessells, supra, 209 

N.J. at 404-07. Specifically, the issue considered was whether 
23 A-6123-11T3

a break in custody followed by a waiver of rights nullified the 

prior invocation of the right to counsel and allowed police to 

renew interrogation. See id. at 404-05 (discussing post-Edwards

holdings addressing the break-in-custody exception). 

In Shatzer, the United State Supreme Court defined the 

scope of this required break in custody. The Court held any 

statements made by a defendant less than fourteen days following 

invocation of the right to counsel were presumptively 

involuntary and must be suppressed. Shatzer, supra, 559 U.S. at 

111, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057. See also

Edwards, supra, 451 U.S. at 484, 101 S. Ct. at 1884, 68 L. Ed.

2d at 386 (noting "additional safeguards are necessary when the 

accused asks for counsel"). As discussed, our Court in Wessells

adopted this fourteen-day standard to define the break-incustody exception, once the right to counsel had been invoked. 

Wessells, supra, 209 N.J. at 413. 

The rules in Shatzer and Wessells were limited to the right 

to counsel. Although the opportunity presented itself, the 

United States Supreme Court and our Supreme Court did not extend 

the fourteen-day break-in-custody requirement to invocation of 

other constitutional protections. A review of precedents leads 

to the conclusion Shatzer's fourteen-day rule is specific to the 
24 A-6123-11T3

right to counsel and is not generally imposed if a defendant 

asserts the right to remain silent.

The Fifth Amendment right to counsel is distinguishable 

from the right against self-incrimination, and actually is an 

additional protection against self-incrimination. See Michigan 

v. Mosley, 423 U.S. 96, 104 n.10, 96 S. Ct. 321, 326 n.10, 46 L. 

Ed. 2d 313, 321 n.10 (1975) (acknowledging the invocation of the 

right to counsel provides additional protection against selfincrimination); State v. Reed, 133 N.J. 237, 258, 262 (1993) 

(noting the right to counsel is distinct from the right against 

self-incrimination). It is well-settled the State has the 

burden to show a defendant relinquished the right to counsel. 

State v. McCloskey, 90 N.J. 18, 28 (1982). This burden is 

"heavy" and will not be implied. Ibid. Further, the 

administration of new Miranda warnings has been held 

insufficient to provide the necessary safeguards to ensure a 

waiver is valid once legal representation is requested. Id. at 

27; see also Mosley, supra, 423 U.S. at 104 n.10, 96 S. Ct. at 

326 n.10, 46 L. Ed. 2d at 321 n.10. On the other hand, 

safeguards for self-incrimination alone have not been so 

circumscribed. 

A voluntary intelligent statement by a defendant fully 

informed of his rights is admissible. "[A] suspect is always 
25 A-6123-11T3

free to waive the privilege and confess to committing crimes," 

so long as the waiver is not the product of police coercion. 

State v. Presha, 163 N.J. 304, 313 (2000). 

 Following our assessment of the totality of circumstances 

surrounding the arrest and interrogation, including such factors 

as "the suspect's age, education and intelligence, advice as to 

constitutional rights, length of detention, whether the 

questioning was repeated and prolonged in nature and whether 

physical punishment or mental exhaustion was involved," as well 

as defendant's "previous encounters with the law," State v. 

Miller, 76 N.J. 392, 402 (1978), we reject defendant's argument 

that his "second statement represented nothing more than a 

continuation of the first." We discern no due process 

violations by police in conducting the May 15 interview.

Substantially for the reasons identified by the trial 

judge, we conclude the second interrogation, preceded by newly 

administered Miranda warnings, resulted in defendant's voluntary 

uncoerced choice to reveal his involvement in the crimes under 

investigation. There is no poisonous taint from the May 14 

Miranda violations requiring exclusion of his confession. 

Importantly, defendant never invoked the right to counsel, 

which would require the extra protections discussed in Shatzer

and Wessells. Here, the break in custody resulted because 
26 A-6123-11T3

defendant said nothing inculpatory during the first interview 

and was allowed to leave. We recognize that interrogation 

should have ended sooner, but ultimately defendant was taken 

home. 

The first and second interviews were separated by fourteen 

hours, during which defendant was not in custody, but home and 

free to move about as he chose. When police asked him to 

accompany them to the prosecutor's office because Detective 

Craig wanted to ask him additional questions, he freely agreed, 

fully cognizant of the subject matter and the fact that police 

wanted to question him further. Prior to commencing any 

questioning, Detective Craig carefully read each right afforded 

defendant under Miranda, and asked him each time if he 

understood that right. Defendant acknowledged he understood his 

rights both orally and by initialing the Miranda card. Once 

police informed defendant they obtained sufficient information 

showing he was with Clemons during the robbery and murder, 

satisfying the requirements to secure an arrest warrant, 

defendant confessed. We conclude this confession was admissible 

and the judge properly denied defendant's motion to suppress.

Defendant's next argument advanced the exclusion of his 

custodial statement invoking the "fruit of the poisonous tree" 

doctrine. Defendant maintains the "egregious constitutional 
27 A-6123-11T3

violations" of the initial interview tainted the subsequent 

questioning and his custodial statement is inadmissible as 

"fruit of the poisonous tree." Following our review, we 

conclude this argument is unavailing.

"The fruit-of-the-poisonous-tree doctrine denies the 

prosecution the use of derivative evidence obtained as a result 

of a Fourth or Fifth Amendment violation." State v. O'Neill, 

193 N.J. 148, 171 n.13 (2007) (citations omitted). Our Supreme 

Court noted the doctrine as developed by United States Supreme 

Court holdings had "'never gone so far as to hold that making a 

confession under circumstances which preclude its use, 

perpetually disables the confessor from making a usable one 

after those conditions have been removed.'" Ibid. (quoting 

United States v. Bayer, 331 U.S. 532, 540-41, 67 S. Ct. 1394, 

1398, 91 L. Ed. 1654, 1660 (1947)). "Under either state or 

federal law, the critical determination is whether the 

authorities have obtained the evidence by means that are 

sufficiently independent to dissipate the taint of their illegal 

conduct." State v. Johnson, 118 N.J. 639, 653 (1990). 

In this regard, "when law-enforcement authorities obtained 

an initial confession in violation of the defendant's common-law 

privilege against self-incrimination," a subsequent confession 

made despite properly informing a defendant of his rights may be 
28 A-6123-11T3

excluded. Id. at 652. The critical factual examination is 

whether a second statement was the product of unconstitutional 

police conduct tainting the first, considering "the time between 

confessions, any intervening circumstances, whether there was a 

change in place, whether the defendant received an adequate 

warning of his rights, whether [the] defendant initiated the 

second confession, the effect of his having made a confession,

and the purpose and flagrancy of police misconduct." Hartley, 

supra, 103 N.J. at 283 (citation and internal quotation marks 

omitted). 

When viewing all facts and circumstances, we conclude, as 

did the trial judge, defendant's confession was not the 

culmination of coercion carrying over from the previous night, 

but of his own volition upon learning the new evidence against 

him. The information obtained from Spencer constitutes 

"intervening circumstances" separating the tenor and outcome of 

the two periods of questioning. See ibid. 

As the trial judge considered, the gaps between the two 

interrogations allowed defendant to freely return home to his 

family. He rested and showed no signs of fatigue. Although he 

had insisted on ending the May 14 examination, he freely 

accompanied police during the early evening on May 15 when told 

they had more questions for him. Before a single question was 
29 A-6123-11T3

uttered, defendant was advised of his Miranda rights and 

informed of the charges against him, as set forth in the warrant 

presented. Finally, defendant had prior interactions with the 

criminal justice system and repeatedly acknowledged he was aware 

of and understood his rights. Defendant made no specific 

inculpatory statements on May 14. Police brought defendant in 

on May 15 because Spencer and information obtained during the 

continued police investigation linked him to the gas station 

robbery and shooting. 

Based on these facts, we do not agree the two periods of 

questioning were inextricably linked such that the May 15 

statement was somehow tainted. Therefore, there was no evidence 

wrongfully obtained that led to the additional questioning. We 

conclude defendant's confession was the product of 

constitutionally appropriate procedures. It did not result from 

police misconduct. 

II.

Defendant also challenges the introduction of graphic 

autopsy photographs, during the medical examiner's testimony, 

which depicted death-rendering wounds of the victim. Defendant 

characterizes this evidence as "unduly inflammatory." 

Succinctly, the judge's ruling allowed the photographs as a 

demonstrative aid to the coroner's testimony; they were not 
30 A-6123-11T3

introduced into evidence. See State v. Scherzer, 301 N.J. 

Super. 363, 434 (App. Div.) ("There is nothing inherently 

improper in the use of demonstrative or illustrative 

evidence."), certif. denied, 151 N.J. 466 (1997). 

Importantly, defendant has not provided the challenged 

exhibits in the appellate record. Nonetheless, the issue does 

not require discussion because no demonstrated prejudice 

resulted to defendant by the use of the photographs because the 

jury acquitted defendant of felony murder, showing it thoroughly 

evaluated all evidence in reaching its verdict. See State v. 

Dellisanti, 203 N.J. 444, 463 (2010) (noting an error did not 

deprive the defendant of a fair trial where the jury ultimately 

acquitted him of a related charge). 

III.

Finally, we reject, as lacking merit, defendant's related 

claims (1) the judge erroneously denied his motion for a new 

trial, R. 3:20-1, which asserted the State failed to prove all 

elements of armed robbery (Point Three); (2) the State failed to 

prove each element of accomplice liability related to the armed 

robbery such that his motion for acquittal should have been 

granted, R. 3:18 (Issue I); and (3) the jury charge on this 

offense was flawed (Issue II). The challenges key on the intent 

element, as defendant argues no evidence showed he "shared the 
31 A-6123-11T3

intent with . . . Clemons to commit an armed robbery." See

State v. Sims, 140 N.J. Super. 164, 173 (App. Div. 1976) ("It is 

clear in New Jersey that a defendant can be held as an aider or 

abettor only if he [or she] had the same criminal intent that 

must be possessed by the principal wrongdoer.").

The arguments are rejected substantially for the reasons 

set forth by the trial judge. Specifically, the State presented 

circumstantial evidence, which if accepted by the jury, proved 

defendant's knowledge and aid in completing the armed robbery of 

the gas station. He knew Clemons "possessed guns" and expressed 

a desire "to get money"; revealed he and Clemons selected the 

gas station for the robbery because it was "an easy spot to go 

get"; drove Clemons to the gas station and waited for his 

return; "parked the vehicle at a location removed from any 

commercial establishment"; and admitted to Spencer "we" had 

committed a robbery. 

"Faith in the ability of a jury to examine evidence 

critically and to apply the law impartially serves as a 

cornerstone of our system of criminal justice." State v. 

Afanador, 134 N.J. 162, 178 (1993). "Appellate intervention is 

warranted only to correct an injustice resulting from a plain 

and obvious failure of the jury to perform its function." State 

v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (citation and 
32 A-6123-11T3

internal quotation marks omitted), certif. denied, 134 N.J. 476 

(1993). If the evidence presented allowed a rational jury to 

find beyond a reasonable doubt the essential elements of the 

crime, the court will not interfere. State v. Jackson, 211 N.J.

394, 413-14 (2012); Afanador, supra, 134 N.J. at 178. 

The jury was provided with defendant's testimony disputing 

his awareness Clemons was carrying a firearm when driving to the 

gas station to get some money. The jury verdict signals its 

rejection of his testimony as not credible and a conclusion the 

significant circumstantial evidence supported defendant's 

knowledge Clemons was armed. Defendant's contention the jury's 

verdict rested "merely upon suspicion, speculation, or 

conjecture or an[] overly attenuated piling of inference upon 

inference" is rejected. 

We also find unavailing defendant's suggestion the jury 

charge on accomplice liability and first-degree robbery was

defective. No objection to the charge was made, requiring our 

examination on appeal under the plain error rule, R. 2:10-2. 

State v. Torres, 183 N.J. 554, 564 (2005). In the context of 

challenges to jury charges, plain error is: "legal impropriety 

in the charge prejudicially affecting the substantial rights of 

the defendant and sufficiently grievous to justify notice by the 

reviewing court and to convince the court that of itself the 
33 A-6123-11T3

error possessed a clear capacity to bring about an unjust 

result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 

399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). "If a 

defendant fails to object to a trial court's instructions, the 

failure to challenge the jury charge is considered a waiver to 

object to the instruction on appeal." State v. Maloney, 216 

N.J. 91, 104 (2013). However, we will reverse if the error is 

"clearly capable of producing an unjust result." R. 2:10-2. 

Reviewing the charge as a whole, State v. Jordan, 147 N.J.

409, 422 (1997), we note the trial court charged first-degree 

robbery, addressing the elements of N.J.S.A. 2C:15-1(a) and (b),

as well as accomplice liability, as set forth in the Model Jury 

Charges. Model Jury Charge (Criminal), "Liability for Another's 

Conduct" (1995). The charge related the elements of accomplice 

liability, found in N.J.S.A. 2C:2-6(c)(1)(b) (providing that one 

is legally accountable for the conduct of another when he or 

she, "[w]ith the purpose of promoting or facilitating the 

commission of the offense . . . [a]ids or agrees or attempts to 

aid such other person in planning or committing it"). Included 

also were the definitions of "aid" and "purposely." See
34 A-6123-11T3

N.J.S.A. 2C:2-2(1); Model Jury Charge (Criminal), "Liability for 

Another's Conduct" (1995).

4 

In delivering the accomplice liability charge, the judge 

described the underlying crime as robbery, rather than armed 

robbery. Defendant contends this instruction was "fatally 

defective." Defendant is incorrect. 

Defendant's argument asserting the crime he was accused of 

was "armed robbery," ignores that first-degree robbery includes 

conduct "if in the course of committing the theft the actor 

attempts to kill anyone, or purposely inflicts or attempts to 

inflict serious bodily injury, or is armed with, or uses or 

threatens the immediate use of a deadly weapon." N.J.S.A.

2C:15-1(b). The jury was told the State had to prove defendant 

aided Clemons, who either must have "killed [the gas station 

attendant] and/or [] was armed with a deadly weapon." Because 

defendant could be convicted under either theory, the trial 

court appropriately declined to refer to the offense as "armed 

robbery." 

We reject defendant's claims this charge as delivered 

misstated the law or confused the jury. We conclude the charge 

adequately identified the applicable accomplice liability 

 

4 The judge distributed an outline to aid the jury "[i]n 

order to facilitate [its] understanding of the [c]ourt's 

instructions with regard to robbery and felony murder . . . ." 
35 A-6123-11T3

principles and articulated the elements necessary for a 

conviction of first-degree robbery, explaining "[t]he State must 

prove it was . . . defendant's conscious object that a specific 

crime charged be committed." Also, because defendant alone was 

on trial and no lesser-included offenses were charged, the jury 

would not be confused or misunderstand the accomplice liability 

charge regarding the first-degree robbery. 

IV.

We review the imposed thirteen-year sentence, in light of 

defendant's suggestion of excessiveness and his claim the judge 

misapplied applicable aggravating factors. "Appellate review of 

the length of a sentence is limited." State v. Miller, 205 N.J.

109, 127 (2011). A reviewing court "does not sit to substitute 

its judgment for that of the trial court." State v. O'Donnell, 

117 N.J. 210, 215 (1989). "The critical focus of the appellate 

power to review and correct sentences is on whether the basic 

sentencing determination of the lower court was 'clearly 

mistaken.'" State v. Jarbath, 114 N.J. 394, 401 (1989). Thus, 

appellate review of a sentencing decision requires this court 

consider:

first, whether the correct sentencing 

guidelines, or . . . presumptions, have been 

followed; second, whether there is 

substantial evidence in the record to 

support the findings of fact upon which the 

sentencing court based the application of 
36 A-6123-11T3

those guidelines; and third, whether in 

applying those guidelines to the relevant 

facts the trial court erred by reaching a 

conclusion that could not have reasonably 

been made upon a weighing of the relevant 

factors. 

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

Defendant focuses his challenge on the inclusion of 

aggravating factor two, "[t]he gravity and seriousness of harm 

inflicted on the victim," N.J.S.A. 2C:44-1(a)(2). He asserts

"the facts adduced at trial suggested that [d]efendant's role in 

th[e] incident was limited to driving the car that took Clemons 

to and from the scene of the crime." 

The trial court considered application of the factor and 

recognized the seriousness of the harm that resulted from 

defendant's actions. The judge noted, "[t]here isn't [a harm] 

more serious than death." Further, he found defendant drove

Clemons to and from the gas station knowing he intended to use a 

firearm to accomplish the robbery, and should have known a 

violent encounter was imminent. The judge made these additional 

findings:

[T]he statute provides, including whether or 

not the defendant knew or reasonably should 

have known that the victim of the offense 

was particularly vulnerable or incapable of 

resistance. Here we have a retail gas 

station attendant 11 o'clock at night all 

alone and we have somebody who is going to 

get money and we know that person possesses 

guns. How anyone who is helping that 
37 A-6123-11T3

person, in this case [defendant], would 

conclude anything other than there was going 

to be either a very violent physical type 

robbery or that . . . Clemons was armed, 

this [c]ourt can't imagine. 

[Defendant] had to know . . . Clemons 

was armed, that's why he stayed out of sight 

and let . . . Clemons do what . . . Clemons 

was going to do. The victim was just plain 

vulnerable and had no chance whatsoever 

. . . . Therefore, the [c]ourt finds that 

aggravating factor two applies.

Based on this analysis, we cannot say the judge abused his 

discretion.

Additional aggravating factors applied included factor 

three, "[t]he risk that the defendant will commit another 

offense," N.J.S.A. 2C:44-1(a)(3), given defendant's pattern of 

previous offenses, and factor nine, "[t]he need for deterring 

the defendant and others from violating the law," N.J.S.A.

2C:44-1(a)(9). Unchallenged is the trial court's finding there 

were no mitigating factors. 

Following our review, we determine the judge's conclusion

the aggravating factors outweighed the non-existent mitigating 

factors constituted a reasonable application of the guidelines 

to the facts, State v. Lawless, 214 N.J. 594, 606 (2013), and 

properly reflected New Jersey's sentencing paradigm focusing on 

the offense and not the offender, State v. Hodge, 95 N.J. 369, 

375 (1984). Finally, the length of the sentence was within the 
38 A-6123-11T3

first-degree range, N.J.S.A. 2C:43-6(a)(1), and does not shock 

our judicial conscience, State v. Ghertler, 114 N.J. 383, 393

(1989). Our intervention is unwarranted.5 

Affirmed.

 

5 We reject as lacking merit defendant's claim that his 

sentence was disparate in light of the two concurrent fifteenyear sentences imposed on Clemons following his guilty plea. R.

2:11-3(e)(2).