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(NOTE: The status of this decision is Unpublished.)
The status of this decision is unpublished
Original Wordprocessor Version
(NOTE: The status of this decision is unpublished.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0133-06T40133-06T4
STATE OF NEW JERSEY,
Plaintiff -Respondent,
v. FRANCIS THOMSON, Defendant -Appellant.

Submitted October 27, 2004 -Remanded December 27, 2004
Resubmitted November 8, 2007 -Decided
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County,

Indictment No. S-1321-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco,
Designated Counsel, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A.

Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
Defendant, Francis Thomson, appeals from the June 29, 2006 order denying his motion to suppress statements he made to police in which he confessed that he and his brother, co-defendant Daniel Thomson, killed a gas station attendant. Defendant claims the trial judge erred in denying the suppression motion because police failed to honor his assertion of his right to remain silent, which he repeatedly expressed by asking to go home during his interrogation. We affirm.
The evidence the State presented at the suppression hearing disclosed that on August 24, 2001, police responded to the scene of a homicide where George Mekhail's body was found. An autopsy revealed that the victim died as a result of multiple stab wounds. The investigation into the victim's death led police to defendant's brother Daniel, who eventually confessed and implicated defendant. Detectives Robert O'Keefe and Steve Kearney of the Oakland Police Department, along with Sergeant Thomas Dombroski and Detective Gregory Kohles of the Bergen County Prosecutor's Office, proceeded to defendant's home around 12:30 a.m. on September 8, 2001. Dombroski initially spoke with defendant's mother, Marie Miele, because defendant was sixteen years old at the time. Miele, verbally and in writing, consented to a search of her home and the questioning of defendant. Kohles and O'Keefe then transported defendant and his mother to the Bergen County Prosecutor's Office. They arrived at approximately
1:00 a.m. and were escorted to a conference room where the Bergen County Juvenile Miranda Rights Form was read by Kohles. Miele testified that she was told the form was just a procedure. Defendant and Miele initialed each section of the form that advised defendant of a constitutional right, signed the form, and consented to waiving defendant's rights.
Defendant was questioned over the next two hours and denied involvement in the homicide. Around 3:13 a.m., Kohles informed defendant that Daniel had confessed to his involvement in the homicide and also implicated defendant. Defendant did not verbally respond to this statement. Miele, however, broke down and requested a break. Following the break, the interview resumed and Kohles told defendant that his brother provided police with the specific details of the victim's death. Defendant again insisted that he was not involved in the killing. Approximately forty-five minutes later, police brought Daniel, who was already in custody, into the interview room, and before being led away, Daniel stated, "Frankie, tell him the truth. I told them Frankie. Frankie, tell them the truth." At this point, defendant and Miele began to cry, the interview stopped, and Miele left the interview room to regain her composure.
When the interview resumed a short time later, defendant confessed to his involvement. Defendant stated that he and Daniel, with their faces covered and armed with knives, went to the gas station to play a prank on a gas station attendant named John. Defendant admitted that when the two arrived at the gas station, they did not see John but did encounter the victim inside the office. The victim pushed defendant out of the office and into the hall, at which time Daniel and the victim engaged in a struggle. Defendant observed that the victim had been stabbed during the struggle, and he confessed that he also stabbed the victim in the back and "possibly could have stabbed him in other places" before he fled from the scene. After the confession, defendant and Miele agreed that he would provide the police with a formal statement. Although Miele took multiple breaks during the interview and experienced several emotional outbursts, neither she nor defendant ever requested that the interview be discontinued.
In contrast to the testimony of the State's witnesses, Miele testified that during the interview, Sergeant Dombrowski, whom she had known for many years due to his friendship with her brother, instructed her to remain quiet, even when she repeatedly asked about Daniel. She recounted that she had words with him during the last break and thereafter walked into the conference room and stated that she was going home. At that point, Daniel was brought into the conference room in an orange jumpsuit, handcuffed and shackled. Miele testified that she then collapsed and repeatedly asked for her brother, ex-husband or an attorney, but her requests were ignored.
The judge denied defendant's motion, finding that Miranda warnings had been properly administered. In addition, the judge found that the investigating officers had not been overbearing during the interview, that defendant's mother had been present and that defendant had "freely and voluntarily, knowingly and intelligently waived [his] right to remain silent."
Thereafter, the court granted the State's motion to prosecute defendant as an adult, and on June 6, 2002, Bergen County Indictment No. S-1321-02 was returned, charging defendant with first-degree murder, N.J.S.A. 2C:15 -1 (Count Three); third -degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4d (Count Four); and third -degree hindering apprehension, N.J.S.A. 2C:29 -3 (Counts Five and Six). On April 30, 2003, defendant entered a conditional guilty plea to an amended charge of aggravated manslaughter (Count One) in accordance with a negotiated plea agreement in which the State agreed to recommend a twenty-year maximum period of confinement and to dismiss the remaining counts in the indictment. Also under the agreement, defendant, pursuant to Rule 3:9-3(f), preserved his right to appeal the denial of his suppression motion. Defendant was subsequently sentenced in accordance with the plea agreement.
Defendant filed a timely appeal. The arguments he raised on appeal included his contention that his statement to police should have been suppressed because the police did not scrupulously honor his right to remain silent. Among the arguments advanced in support of this contention was defendant's reference to his mother's testimony during the suppression hearing that "all night long" he stated, "I want to go home." Defense counsel argued that this statement was the equivalent of an expressed desire to remain silent, requiring investigators to terminate the interview or, alternatively, if the statement was viewed as equivocal, then limiting further questioning to a clarification of defendant's intent. Because the trial court did not render a factual determination of whether defendant made this statement as his mother testified, we remanded the matter "so that the existence or not of a plain or ambiguous invocation of the right to remain silent can be established, and defendant's argument can be considered in light of the resolution of that issue." State v. Francis Thomson, No. A-1403-03T4 (App. Div. December 27, 2004 (slip op. at 17)).
On June 27, 2006, the trial court conducted the remand proceeding, during which counsel presented excerpts from the suppression hearing record, and the court entertained oral argument. At the conclusion of the proceeding, the judge rendered an oral opinion in which he found that "neither the [d]efendant or [his mother] ever asked to leave the interview." Consequently, the trial court once again denied defendant's motion to suppress his statement. The present appeal ensued.
Defendant raises the following points for our consideration:
POINT I
THE LOWER COURT FAILED TO MAKE ADEQUATE FINDINGS OF CREDIBILITY ON REMAND, AND THEREFORE THE STATE FAILED TO PROVE THAT THERE WAS NOT A REQUEST BY THE DEFENDANT TO TERMINATE THE INTERROGATION.
POINT II
THE EVIDENCE BEING IN EQUIPOISE, THE STATE FAILED IN ITS BURDEN OF PROVING THAT THERE WAS NO INVOCATION OF THE RIGHT TO TERMINATE THE INTERROGATION, AND THE STATEMENTS BY THE DEFENDANT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED.
Defendant acknowledges that the scope of our review of a motion to suppress is limited. See State v. Elders , 192
N.J. 224, 243 (2007). Nonetheless, defendant contends that reversal is warranted because the trial court's credibility determinations were erroneous and did not comply with our remand directive.
Defendant specifically points to the trial court's finding that Miele had an interest in the outcome of the case, but then failed to identify the nature of that interest or how that interest affected her credibility, effectively leaving her status as defendant's mother the only plausible interest that could be gleaned from the record. Defendant submits that the mere existence of a familial relationship does not automatically create an interest in the outcome of a case, rendering a witness' testimony less credible. Further, defendant contends the trial court failed to make any specific findings relative to Miele's demeanor, thus providing this court with no facts upon which to review its finding. As such, defendant urges that we disregard the trial court's credibility determinations, find that the credibility of the witnesses was in equipoise, and find that the trial court erred in finding that defendant and Miele did not request to go home during the interview.
Generally, an appellate court should not engage in an independent assessment of evidence as if it were the court of first instance, even if the trial court has not fully explained the reasons for its credibility findings, as long as the reasons for the court's determinations can be inferred from its decision. State v. Locurto, 157 N.J. 463, 471-472 (1999). Instead, "[a]ppellate courts should defer to trial court's credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474. Thus, our task as a reviewing court is to "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Id. at 471. A trial court's findings of fact will not be disturbed on appeal unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
In his oral decision of June 27, 2006, the trial judge concluded,
On October 16 and 17, 2002 and April 15, 16 and 22, 2003 a motion to suppressdefendant's confession was heard and then decided by this Court. During directexamination Marie Miele testified that both she and her son repeatedly stated that theywanted to go home during questioning by police. This assertion is found to beincredulous. Miele's testimony was inconsistent at times and she had an interest in theoutcome of the proceedings.
Further, her testimony contradicted the testimony of three witnesses for the State. Thethree witnesses stated that neither the defendant nor his mother, Ms. Miele, ever stated that they wanted to go home.
The testimony of Sergeant Dombroski, Detective Gregory Kohles and Detective RobertO'Keefe is found to be credulous. They were articulate, straight forward, answered eachquestion fully, without hesitation, and were unequivocal in their responses.
Based upon the record and the totality of circumstances Ms. Miele's testimony is foundto be incredulous. As a result, it is not necessary to consider whether the allegedstatement "I want to go home" by defendant and Ms. Miele is an ambiguous assertionof the right to remain silent.
The trial judge's determination that the State's witnesses were credible obviously reflects his opportunity to observe their testimony under both direct and cross-examination. It may be inferred that the trial judge did not reach the same conclusion from Miele's testimony. As the record reflects, Miele's testimony was at times equivocal. For example, she testified that when officers appeared at her home looking for defendant, she inquired why they wanted to speak to him and why she was being asked to go with them. She testified that "[n]obody answered my questions or anything[,]" police handed her papers to sign on the hood of her car and told her to sign the papers without explaining what she was signing, but then testified that the papers involved "[s]omething about searching." She also testified that she carried her glasses in her pocketbook, but then denied having them when she reviewed the Consent to Search Form outside her home and the Rights Forms at the Bergen County Prosecutor's Office. She then testified that it was only recently that she began carrying her glasses in her purse. She also testified that she could not, without her glasses, read "little things[,]" but acknowledged her signature and initials were in the appropriate spaces on the forms. She initially testified on direct examination that when police arrived at her home that evening, her son was awake because "a couple of his friends were over[.]" On cross-examination, she testified that "Frankie and his friend [S.Z.]" were "[w]atching a movie in Frankie's room." Later during cross-examination, she denied testifying that "he was with a couple friends" and stated that what she in fact said was that "there was always a lot of friends over all the time." She claimed that Detective Robert O'Keefe was not in the interview room during questioning, despite the presence of his signature on the Bergen County Prosecutor's Office Juvenile Constitutional Rights Form and Parent Guardian Waiver. When his signature was pointed out to her, she then testified that the form "looks like it was done after --this was done way after." When questioned as to when the form was done, she responded, "I don't know. Something is wrong."
Thus, despite the fact that the judge did not describe in detail why he found Miele's testimony incredulous, when her testimony is placed in the context of the judge's characterization of the officers' testimony as "articulate, straight forward, answer[ing] each question fully, without hesitation, and [being] unequivocal in their responses," it is apparent that the trial judge did not find that Miele's testimony was reliable.
A trial judge is not required to articulate in detail his credibility determination if the reasons supporting his credibility determinations may be gleaned from and are well-supported by the account of the facts and witnesses' testimony presented in his decision. Locurto, supra, 157 N.J. at 474. We do not find that the trial judge's credibility determination that led him to conclude that neither defendant nor Miele asked to go home was so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence "that the interests of justice demand intervention and correction." State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, that Miele is defendant's mother does not, standing alone, discredit her testimony. However, when her familial relationship to defendant is considered along with her testimony, it may reasonably be inferred that the equivocal nature of her testimony may have been influenced by the fact that defendant is her son. Thus, we find no error in the judge's consideration of her interest in the outcome of the case.
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). (continued)
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A-0133-06T4


December 10, 2007

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