Date: 04-08-2016

Case Style: STATE OF NEW JERSEY VS. DORELLE RASHAN WALLACE

Case Number: A-0767-13T1

Judge: Marie E. Lihotz

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: John J. Hoffman, Sarah E. Ross

Defendant's Attorney: Joseph E. Krakora, Gilbert G. Miller

Description: The charges arise from defendant's participation in two
robberies. The first occurred on June 15, 2011. Defendant and
two others robbed a Pennsauken jewelry store, while armed, and
beat and detained employees. The three perpetrators fled the
scene in an SUV. Police subsequently stopped the car occupied
by Dwayne Tribett and Edward Bettis. Tribett was released when
robbery victims failed to identify him as one of the
perpetrators during a show-up. Bettis, however, was arrested
because police discovered an outstanding warrant.

Following Bettis' arrest, police searched the vehicle and
found a driver's license of one of the robbery victims. Bettis
was confronted with this evidence and he agreed to discuss his
role in the robbery, during which he identified Tribett and
defendant as the other participants.
The second robbery occurred on July 18, 2011, when
defendant and Tribett, armed with a handgun, entered a United
Check Cashing branch in Stratford and ordered an employee to
open a safe. When she was unsuccessful, the two fled in a
silver Jeep Cherokee. Police gave chase. Defendant and Tribett
exited the vehicle, fleeing in separate directions on foot.
Tribett was shot and killed, but defendant was ultimately
apprehended and taken into custody that same day.
Sergeant William Townsend and Investigator Gary McBride
began a recorded interview of defendant at approximately 12:30
p.m. Prior to questioning, McBride advised defendant of his
Miranda1 rights. Defendant acknowledged he understood these
rights and initialed the Miranda form. Defendant was told he
would be charged and was asked to be honest when answering
questions because that might impact what charges the prosecutor
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A-0767-13T1 5
presented. Defendant agreed to waive his rights and spoke to
the investigators.
Initially, defendant maintained his innocence, explaining
he was shopping with his girlfriend at the mall during the
jewelry store robbery. As to the check cashing business
robbery, defendant admitted he was in the area, where he saw
Tribett sitting in his Jeep. Tribett told defendant he was
hungry and had no money, so defendant went into the drug store
to buy Tribett chips and a soda. These items were later found
in the Jeep. Defendant stated when he exited the drug store,
Tribett was no longer in the car and he looked for him in the
check cashing business. It was then defendant learned Tribett
intended to rob the check cashing business. Defendant told the
investigators he immediately walked away to the area police
later found him.
Despite Sergeant Townsend's insistence this story was not
truthful, defendant steadfastly repeated his version of events
and offered to submit to a lie detector test. The officers
ignored defendant's polygraph requests and continued the
interrogation, suggesting perhaps defendant was caught up in the
matter because he feared Tribett. At one point Sergeant
Townsend suggested he would call a polygraph operator and left
the interview room for less than ten minutes. When Sergeant
A-0767-13T1 6
Townsend returned, he stated he doubted defendant's assertions
of innocence. Defendant responded: "I'm not going to sit here
and admit to something I really never knew nothing about."
Sergeant Townsend again stated he would look into acquiring the
polygraph machine, then he and Investigator McBride stopped the
recording and left the interview room.
At approximately 1:39 p.m., defendant was placed in an
interview room with the same investigators. Sergeant Townsend
informed defendant he and Investigator McBride would be leaving
and intended to inform him of the charges being filed. Sergeant
Townsend asked if defendant had anything else he wanted to say
to which he replied:
You know it's the crazy thing. I don't know how you knew, but you knew. And when I mean I say that is . . . about having pretty much (inaudible) people do this stuff. I don't know where . . . I don't know how you hit it but you hit it on the head. Sergeant Townsend remarked he understood defendant was
caught in something he would not "normally get himself wrapped
up in" and questioned defendant about the jewelry store robbery.
Without prompting or interruption by Sergeant Townsend or
Inspector McBride, defendant began talking generally about his
life and relationship with Tribett. He provided details of the
jewelry store robbery followed by those relating to the check
cashing business robbery. Defendant then admitted he was at the
A-0767-13T1 7
check cashing business, knew Tribett had a gun in his back
pocket and drove the vehicle as the two fled. Sergeant Townsend
suggested a video captured defendant and told him he needed to
be honest about what happened. At that point, defendant asked
to pause the recording. This colloquy followed:
[Sergeant Townsend]: I need you to be honest about everything man. Don't . . . sugar coat stuff [be]cause you think it's [going to] hurt you. I'm telling you right now man, this is the situation where the prosecutor figures things out.
[Defendant]: Let me say this . . . one, can we stop the tape for one second?
[Sergeant Townsend]: I can't do that man . . . and that's for your protection and for mine man.
[Defendant]: One second please.
[Sergeant Townsend]: I can't I'm not allowed. I can't I can't.
[Investigator McBride]: The law requires us to tape this.
Defendant confirmed Tribett was dead and began speaking
about his involvement. He explained he learned Tribett wanted
to kill him. Fearing for his life, he had contacted the Federal
Bureau of Investigation and revealed Tribett's involvement in a
Gloucester County bank robbery.
During the suppression hearing, Sergeant Townsend testified
and defendant made a statement suggesting he was beaten during
A-0767-13T1 8
the break in the videotape. Finally, the judge reviewed the two
videotapes capturing defendant's interrogation.
II.
A.
On appeal, starting with the suppression hearing, defendant
maintains Judge Michele M. Fox erroneously found the custodial
statement was voluntary, despite claims defendant requested to
remain silent, which was ignored by police. First, defendant
suggests the break in the interrogation required his Miranda
rights be re-administered. Second, he maintains the request to
turn off the tape equated to an invocation of his right to
remain silent triggering the need to reissue Miranda warnings
before continuation of the interrogation. We reject these
arguments.
"[A] finding of compliance with Miranda and voluntariness
turn[s] on factual and credibility determinations . . . ."
State v. Faucette, 439 N.J. Super. 241, 255 (App. Div.)
(alterations in original) (quoting State v. W.B., 205 N.J. 588,
603 n.4 (2011)), certif. denied, 221 N.J. 492 (2015). This
court will not "engage in an independent assessment of the
evidence as if it were the court of first instance," State v.
Locurto, 157 N.J. 463, 471 (1999), nor will it make conclusions
regarding witness credibility, State v. Barone, 147 N.J. 599,
A-0767-13T1 9
615 (1997). Rather, in our review we determine whether there is
"sufficient credible evidence in the record to sustain the trial
judge's findings and conclusions." W.B., supra, 205 N.J. at 603
n.4. If so, our "task is complete and [we] should not disturb
the result." State v. Johnson, 42 N.J. 146, 162 (1964). Our
deference to the trial judge's finding is not applicable only
"when the trial court's sole basis for its findings and
conclusions is its evaluation of a videotaped interrogation."
State v. Diaz-Bridges, 208 N.J. 544, 565 (2011) (emphasis
added). "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." Id. at 565-66.
Also, when "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.'"
Faucette, supra, 439 N.J. Super. at 256 (quoting State v.
Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974), aff'd, 67
N.J. 80 (1975)). Finally, the trial judge's legal conclusions
are reviewed de novo. State v. Shaw, 213 N.J. 398, 411 (2012).
Our "inquiry begins with whether the suspect invoked his or
her right to remain silent." Diaz-Bridges, supra, 208 N.J. at
A-0767-13T1 10
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).
"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." Faucette,
supra, 439 N.J. Super. at 257. The State bears the burden of
proving "beyond a reasonable doubt that the suspect's waiver was
knowing, intelligent, and voluntary in light of all the
circumstances." State v. Patton, 362 N.J. Super. 16, 42 (App.
Div.) (quoting State v. Presha, 163 N.J. 304, 313 (2000)),
certif. denied, 178 N.J. 35 (2003).
Judge Fox thoroughly reviewed the totality of evidence
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). Her fact
sensitive inquiry considered the statements cited by defendant,
as well as their context in the interrogation, evaluating
defendant's words and actions. Diaz-Bridges, supra, 208 N.J. at
565. She also considered and credited Sergeant Townsend's
testimony and viewed the videotapes. Judge Fox found the
A-0767-13T1 11
evidence did not reasonably support defendant invoked his right
to remain silent or that he sought a break in the interrogation.
Id. at 569. We defer to these factual findings, which are
"substantially influenced by his [or her] opportunity to hear
and see the witnesses and [develop a] 'feel' of the case, which
a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97,
109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161).
Further, we agree defendant's protests of innocence and requests
to take a polygraph did not represent statements seeking to stop
the interrogation or invoke his right to remain silent.
Similarly, we conclude the break in the interrogation,
initiated by the investigators and not defendant, did not
trigger the need to reissue Miranda warnings as mandated by
Hartley, supra, 103 N.J. at 267. In Hartley, the Court
underscored the need to reissue Miranda warnings after a suspect
requests to remain silent, stating:
We . . . declare as indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect the furnishing of fresh Miranda warnings. Unless the police follow this "bright-line," inflexible, minimum requirement, a defendant's statement made in the abovestated circumstances cannot be admitted into evidence as part of the prosecution's case in-chief. See also State v. McCloskey, 90 N.J. 18, 30 n.3 (1982) ("[P]rosecution cannot use any statements made during [the defendant's] second interrogation, before
A-0767-13T1 12
which new Miranda warnings were not given".).
[Ibid.]
However, "[n]ot every break in questioning compels renewed
administration of the Miranda warnings." State v. Harvey, 151
N.J. 117, 222 (1997) (alteration in original) (quoting State v.
Bey, 112 N.J. 123, 138-40 (1988)). Where a defendant has not
invoked his or her right to remain silent, the State must
demonstrate only that the defendant executed a knowing,
intelligent, and voluntary waiver of his or her Miranda rights.
Hartley, supra, 103 N.J. at 260-61.
Judge Fox found the brief stoppage in the custodial
interview was not the result of defendant's assertion of his
right to remain silent; rather, the investigators decided to
take a break and check on the possible administration of a
polygraph examination. She concluded this was "one continuous
interview."
Having reviewed the record, including the video of
defendant's custodial statements, we too determine the nature of
the interruption in the interrogation was insignificant. We
affirm the judge's finding defendant did not seek to end the
interrogation nor did he, directly or indirectly, invoke his
right to remain silent. Accordingly, Sergeant Townsend and
Investigator McBride did not need to reissue Miranda rights when
A-0767-13T1 13
they returned to the interview room to continue their
interrogation. They properly relied on defendant's prior
voluntary waiver to discuss the matter with police.
Finally, defendant's request to turn off the videotape did
not invoke his Fifth Amendment rights. In this regard, Judge
Fox properly considered the totality of the circumstances and
found credible Sergeant Townsend's explanation that defendant
was neither confused about his rights nor desirous of ending the
interview; rather, he wanted his comments not to be recorded.
After being told the tape must continue to run, defendant
continued to speak freely with little to no interruption from
the interrogators.
The sufficient credible evidence in the record supports
these findings. The conclusion defendant did not invoke his
right to remain silent will not be disturbed. Accordingly,
defendant's inculpatory custodial statement was properly found
admissible.
B.
Defendant next argues he was "deprived . . . of his
constitutional right to an effective opportunity to present his
defense." Defendant notes he was permitted to address the
court, during the Miranda hearing, and asserted he was "punched"
and "beat up" when the tape was stopped. He contends counsel
A-0767-13T1 14
did not fully raise this issue and actually interjected he did
not want defendant to testify, advising the issue was one for
trial.
To support his constitutional deprivation argument,
defendant cites Crane v. Kentucky, 476 U.S. 683, 106 S. Ct.
2142, 90 L. Ed. 2d 636 (1986), which addresses a defendant's
right to present a complete defense at trial, including
"competent, reliable evidence bearing on the credibility of a
confession." Id. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at
645. We find defendant's argument lacks merit. R. 2:11
3(e)(2).
Notably, defendant's claims strike at the credibility of
his confession, which is a question for the jury. State v.
Hampton, 61 N.J. 250, 272 (1972). Additionally, the strategic
choice of deciding not to present defendant's testimony, which
could be used against him, prior to trial and prior to the
actual development of the issue, should not be second-guessed,
particularly since once all evidence was known, defendant
retained the right to file additional motions or testify at
trial. State v. Savage, 120 N.J. 594, 631 (1990).
C.
Defendant entered his guilty pleas before Judge Gwendolyn
Blue. Prior to sentencing, defendant moved to withdraw his
A-0767-13T1 15
plea, asserting he did not participate in the jewelry store
robbery. Defendant acknowledged he testified he had entered the
jewelry store while armed intending to steal; affirmed he had an
opportunity to review the evidence amassed by the State; and was
pleading guilty because he was guilty. However, at the motion
hearing he maintained he was forced to make these statements,
which were not true. On appeal, defendant argues Judge Blue
abused her discretion in denying his motion. We are not
persuaded.
When evaluating a motion to withdraw a defendant's guilty
plea prior to sentencing, if the plea is supported by an
adequate factual basis, but the defendant later asserts his
innocence, a trial judge must consider: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair
advantage to the accused." State v. Slater, 198 N.J. 145, 157
58 (2009). When we review a denial of such a motion, we examine
whether the trial judge's determination represents an abuse of
discretion. State v. Tate, 220 N.J. 393, 404 (2015). We must
defer to findings assessing a defendant's proffered reasons to
A-0767-13T1 16
withdraw the plea, the strength of the defendant's case, and any
credibility determinations. Ibid.
During the initial plea hearing, defendant informed the
judge he was entering a guilty plea because he was "backed into
the corner," which he explained resulted because of
dissatisfaction with counsel. Twice during the hearing, the
judge rejected the proffer of a plea because she considered
defendant's comments reflected coercion. Defendant insisted he
wanted to plead guilty after reviewing the evidence against him.
The judge probed this statement. Defendant confirmed, although
he was not happy with counsel's advice, he personally reviewed
the evidence and understood the State's case, which was why he
was entering a plea. Defendant reserved the right to raise his
Miranda challenges on appeal and provided a factual basis for
his guilt.
Prior to sentencing, defendant again asserted substantially
the same challenge, stating counsel did not file all motions he
believed were appropriate. His contention was rejected by Judge
Blue who found defendant not credible and concluded his
assertions reflected a change of heart, specifically relying on
recited portions of his plea testimony.
Judge Blue's findings to support her denial of the motion
to withdraw his guilty plea are well supported by the record.
A-0767-13T1 17
She found defendant was fully advised of the consequences of
waiving his right to appeal; noted although defendant raised
concerns about counsel's performance, he separately reviewed all
discovery and evaluated the strength of the evidence, which
included a co-defendant's statements; and repeatedly assured her
he was neither coerced or promised anything to enter the plea,
but was pleading guilty because he was guilty. Thus, Judge Blue
found defendant's claims of innocence not credible.
"[A] defendant's representations and the trial court's
findings during a plea hearing create a 'formidable barrier' the
defendant must overcome in any subsequent proceeding." Slater,
supra, 198 N.J. at 156 (quoting Blackledge v. Allison, 431 U.S.
63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). To
set aside a guilty plea, supported by a factual basis,
"defendants must show more than a change of heart." Id. at 157.
As observed by the Supreme Court "judges must act with 'great
care and realism' because defendants often have little to lose
in challenging a guilty plea." Id. at 160 (quoting State v.
Taylor, 80 N.J. 353, 365 (1979)).
We defer to these findings, made following Judge Blue's
careful scrutiny of defendant's testimony and her review of the
record. As the judge who considered and accepted defendant's
A-0767-13T1 18
plea, Judge Blue was in the best position to observe defendant's
demeanor and consider his newly raised assertions of innocence.
To the extent defendant raises claims of ineffective
assistance of counsel that may require review of evidence
outside the hearing record, he is free to seek post-conviction
relief.
D.
Defendant's final issue presented on appeal argues the
consecutive sentences imposed were manifestly excessive. We
disagree.
In our review, we will affirm a sentence unless: (1) the
judge violated the sentencing guidelines; (2) competent,
credible evidence in the record did not support the findings of
aggravating and mitigating factors; or (3) the application of
the law to the facts shocks the judicial conscience. State v.
Bolvito, 217 N.J. 221, 228 (2014).
Recognizing "there is no presumption in favor of concurrent
sentences," State v. Abdullah, 184 N.J. 497, 513 (2005),
statutory sentencing guidelines permit a sentencing judge, in
the exercise of his or her discretion, to impose either
concurrent or consecutive sentences. N.J.S.A. 2C:44-5(a).
Consecutive sentences are bounded by the factors set forth in
A-0767-13T1 19
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied,
475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986):
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
A-0767-13T1 20
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
A sentencing judge must weigh these factors qualitatively
not quantitatively. State v. Carey, 168 N.J. 413, 427-28
(2001). Further, consideration of a plea agreement may impact
the decision of whether imposing consecutive sentences is
appropriate and reasonable. State v. Balfour, 135 N.J. 30, 37
40 (1994). Here, the judge did not specifically delineate the
applicable Yarbough factors. Nevertheless, the record permits
us to affirm the imposed sentences because "the facts and
circumstances leave little doubt as to the propriety of the
sentence imposed" and we find no basis to conclude "the sentence
is 'clearly mistaken.'" State v. Jang, 359 N.J. Super. 85, 97
98 (App. Div.) (quoting State v. Kromphold, 162 N.J. 345, 355
(2000)), certif. denied, 177 N.J. 492 (2003).
Here, defendant was involved in two violent first-degree
offenses that occurred at separate times (over one month apart),
in separate municipalities, and involved distinctly different
victims. State v. Molina, 168 N.J. 436, 442-43 (2001)
(upholding consecutive sentences in a case including multiple
victims even though the trial judge failed to provide reasons).
The plea agreement, which included the State's proposal to
A-0767-13T1 21
dismiss numerous charges in the two indictments, required the
sentences imposed on the convictions to be consecutive. Based
on the plea agreement itself and defendant's testimony during
the plea hearing, there was no doubt any sentences imposed were
to be consecutive. State v. Soto, 385 N.J. Super. 247, 257
(App. Div. 2006) ("These were separate crimes committed on
separate occasions and the plea agreement itself called for
consecutive sentences.").
Also, contrary to defendant's assertion, the judge was very
much aware of and explained to defendant during his plea hearing
the real time consequences of the sentences imposed. See State
v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.) (holding when
imposing consecutive sentences, courts must consider the real
time consequences of the No Early Release Act), certif. denied,
182 N.J. 142 (2004). Defendant acknowledged he understood these
aspects of the proposed agreement and wanted to plead guilty.

Outcome: We conclude the judge fulfilled her duty to identify
applicable aggravating and mitigating factors and balance those
factors. The judge applied aggravating factors three, "[t]he risk that the
defendant will commit another offense"; six, "[t]he extent of
the defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted"; and nine, "[t]he need
for deterring the defendant and others from violating the law."
N.J.S.A. 2C:44-1(a)(3), (6), and (9). The judge then reviewed
possible mitigating factors and found none. The length of the
sentences was set within the first-degree range and does not
shock our judicial conscience.
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: