PER CURIAM.
Defendant Samander S. Dabas appeals from his conviction for the purposeful or knowing murder of his wife Renu Dabas, in violation of
We discern the following facts and procedural history from the record on appeal, particularly the transcripts of the motion to suppress and the trial.
Samander
In 2004, Samander was working seven days a week at a manufacturing company. He also worked two to three times a week at Dollar City, a store owned by the Khatris and located in South Brunswick Square Mall (Mall).
On Tuesday, August 24, 2004, Halah Shal was working at Dollar City, expecting Shushila to relieve her between 5:00 and 6:00 p.m. Prior to that time, however, Shushila telephoned Shal and told her that Samander would be coming in her place.
Samander arrived at approximately 5:10 p.m., accompanied by Renu. Shal observed them walking the aisles of the store and talking, after which Samander went to the back of the store to open boxes. Shal left at about 5:30 p.m.
Between 9:15 and 9:25 p.m. that evening, Heather Porcello, an employee of a tanning salon at the Mall, heard "a loud bang noise" that she described as "almost like a car backfiring" in the parking lot. She looked out the front window and saw "a van kind of jerked to a stop right in front of the salon," approximately twenty to thirty feet away. She observed smoke coming out of the hood of the car. There were no other vehicles moving in the parking lot at that time.
Jessica Almodovar, the receptionist at a hair salon adjacent to the tanning salon, heard a loud noise from the direction of the parking lot. About ten seconds later, an employee who had been standing at the front door of the salon told Almodovar to call 9-1-1 because there had been an accident. When Almodovar looked out, she noticed a woman, eventually identified as Renu, lying on the curb, and a man, eventually identified as Samander, standing by the van. The man was looking under the hood and then got into the driver's side of the van.
Laura Lako, another employee at the hair salon, went to the tanning salon and told Porcello a van had driven "crazily" through the parking lot and someone was laying on the ground. Porcello went outside and observed Renu lying "along the curb to the left of the tanning salon, a ways down," in front of a jewelry store. When Porcello looked toward the minivan, she observed a man, described as in his forties and of "Asian-Indian descent," standing by the vehicle "messing around with the hood, maybe trying to fix it." According to Porcello, the man "would play around with the hood of the van for a little bit, and then. . . walk around to the driver's side part of the vehicle." Porcello never saw the man walk over to Renu, who was laying motionless on the ground.
Officer Robert Jairdullo of the South Brunswick Township Police Department arrived at the Mall shortly thereafter. He observed a black minivan with front-end damage parked in the area in front of the jewelers. Samander was seated in the front driver's seat, attempting to start the van. When Jairdullo reached the van and asked Samander what had happened, he "shrugged his shoulders." Jairdullo noted "an odor of alcohol coming from his breath" and that he had "red glassy eyes." When Jairdullo asked Samander whether he had been drinking, he responded "yes."
After Almodovar drew his attention to Renu's body laying on the curb, Jairdullo ran over to her. According to Jairdullo, Renu lay on her back, "[h]er feet were on the sidewalk, and her head and upper body were in the No Parking lane of the drive lane." At that time, she was unconscious and did not appear to be breathing. Blood was flowing from her ears and nose.
After observing Renu, Jairdullo went back to the van, asked Samander to exit the vehicle, and placed him in the back of his patrol car for "safekeeping" so that he "could ascertain what had happened." Jairdullo did not formally place Samander under arrest or handcuff him when he put him in the patrol car. He did not observe Samander having any difficulty walking over to the police car, and characterized him as "[c]alm, cooperative, [and] alert."
Jairdullo returned to Renu to ascertain the extent of her injuries. He found that she had no pulse. At approximately 9:34 p.m., two paramedics arrived and began to administer first aid. Renu was unresponsive, exhibited signs of head injury, and was losing blood from her ears, nose, and mouth. One of the paramedics noted that Renu had a "large laceration to the left arm, and bruising . . . to both her arms and her legs." Renu's heart stopped beating at about 9:43 p.m., at which time CPR and intubation were initiated.
Jairdullo and Patrolman Michael Pellino, who had recently arrived at the scene, attempted to find witnesses to the collision, but were unsuccessful. As Patrol Officer Laszlo Nyitrai arrived to take over the investigation, the paramedics were leaving the scene with Renu in an ambulance.
Nyitrai observed "a blood spot on the pavement near [the] jewelers, where the victim had been found laying," as well as the location of the minivan. He went over to Samander in the backseat of Jairdullo's patrol car and "observed that there was a strong odor of an alcoholic beverage coming from his breath" and that "his eyes were both bloodshot and watery." Nyitrai described Samander as alert and coherent.
Nyitrai asked Samander what had happened. Samander responded that he had had an accident. He said that Renu had initially been in the van, but "was not in the van in the end" and that he did not know why. Samander told Nyitrai that he had been drinking whiskey that evening.
Nyitrai placed Samander under arrest for driving while intoxicated (DWI). Nyitrai advised Samander of his
At 10:30 p.m., Sergeant Michael Kushwarra directed Jairdullo and Pellino to bring Samander to a hospital for blood-alcohol testing. Kushwarra also ordered Pellino to read the
Jairdullo and Pellino drove Samander to Robert Wood Johnson University Hospital. According to Jairdullo, Samander was "calm [and] alert" during the drive to the hospital. Pellino noted an odor of alcohol "emanating from his breath" and that "[h]is eyes were bloodshot and watery," but described his demeanor as "calm, polite, cooperative, [and] coherent."
During the ride to the hospital, Pellino read Samander his rights verbatim from a
Jairdullo and Pellino arrived at the hospital at about 11:00 p.m. and brought Samander to the emergency room. Nancy Langill, an emergency room nurse, evaluated Samander, a routine procedure for patients involved in motor vehicle accidents. Her nursing notes reflected that she smelled alcohol on his breath, which caused her to conclude that he had consumed alcohol prior to arriving at the hospital. Langill assessed Samander's neurological status as normal. Langill's notes do not mention slurred speech or difficulty walking. Two vials of Samander's blood were drawn by Langill at 11:35 p.m.
According to Jairdullo, Samander appeared "calm, lucid, [and] alert" at the hospital. He remained awake and coherent. Neither Pellino nor Jairdullo questioned Samander at the hospital, although Samander had asked Jairdullo twice about Renu's whereabouts. Samander's speech was not slurred and he did not have difficulty standing or walking. Samander did not appear "emotional" or "upset" to Jairdullo.
Jairdullo and Pellino transported Samander to the South Brunswick Police headquarters. They arrived at headquarters at approximately 12:10 a.m. on August 25, at which point Samander was placed in a holding cell. According to Pellino, Samander never "appear[ed] to have any difficulty understanding or communicating" in English while in his and Jairdullo's custody.
John Dando, an investigator from the Fatal Accident Unit of the Middlesex County Prosecutor's Office, began his investigation of the scene at 11:00 p.m. It lasted for approximately two-and-one-half hours. He reported to Lieutenant Raymond Forziati of the Prosecutor's Homicide Unit that he believed Samander may have struck Renu intentionally. Forziati and Investigator Todd Gerba, also from the Prosecutor's Office, went to the scene for further investigation.
Forziati, Gerba, Dando, and Nyitrai arrived at police headquarters at approximately 2:30 a.m. Samander, who had only been charged with DWI at that time, was in the juvenile conference room on the second floor and was not handcuffed or otherwise restrained. Dando, Gerba, and Nyitrai entered the conference room and introduced themselves.
Having noticed that Samander spoke English with an accent, Dando asked whether he was of Indian descent. Samander responded that he was. Dando next asked Samander whether he would be willing to speak to them regarding the event's leading up to Renu's injuries. After he responded that he would be willing to talk, Dando asked whether he would be more comfortable speaking to them with the assistance of an interpreter. Samander responded that he knew English and there was no need for an interpreter. Dando found him to be "calm," "cooperative," and "very attentive" at that time.
According to Dando, Gerba read Samander his
The officers then began a "pre-interview" interrogation, which was not recorded by video- or audio-tape. The pre-interview lasted approximately two hours. According to Dando, during the first hour, Samander was asked about his background, including family and work history. During that time, Dando was "assessing quite a few things," including whether or not Samander understood the questions he was being asked, as well as his level of intoxication. Although Dando detected the smell of alcohol coming from Samander's breath and observed his bloodshot and watery eyes, he concluded that Samander was "knowingly and intelligently" answering questions. His speech was not slurred, and he did not exhibit other indicia of intoxication.
Dando and Gerba then began to question Samander regarding the events of August 24. Samander told them that he had gotten up at 6:00 a.m. that day, which was his first day off work since Renu had arrived from India. He picked up his son from his first marriage, spent some time with him, and then returned his son at about 4:15 p.m.
Samander and Renu went to Dollar City at approximately 5:00 p.m. to work at the store. Shal was working there when they arrived. Samander showed Renu how to stock the shelves. After she began to do so, he walked across the Mall to a liquor store, bought a "very large" bottle of scotch whiskey, and returned to Dollar City.
Samander initially stated that he began to drink when he returned to Dollar City, but then stated that he started drinking later, after he closed the store. He told Dando that his sister had told him he was not permitted to drink in the store.
Samander told the police officers that he filled a coffee mug more than halfway with scotch and added a splash of water. He consumed two such drinks. He was working the cash register at the counter near the front of the store, and left the mug underneath the counter and hid the bottle of scotch in the back storeroom.
Samander closed the store between 8:30 and 9:00 p.m., and he and Renu walked to his van, which was parked near the store. Renu climbed into the passenger seat as Samander got into the driver's seat. He put his seat belt on, but did not recall whether Renu put hers on. As he was driving through the parking lot, the van struck a small tree. The impact caused the van's airbags to deploy.
According to Dando, when he asked Samander what happened after he struck the tree, "his entire demeanor changed." Dando testified that, up until that point, Samander "was making eye contact. He was being very open and honest. At that point in time, he sat straight back in his chair. He crossed his arms in front of him, and he looked directly down at the ground, and he said, she wasn't there." Dando asked Samander what he meant, and continued to ask him "a few more times." Samander eventually responded that he did not know what happened, that she "was there, but then she wasn't."
Based on the change in behavior, Dando concluded that Samander was becoming "evasive" and "nervous." Samander repeated that "she wasn't there" and that he didn't know what happened in response to repeated questions about what occurred after he hit the tree. Dando asked Samander to calm down and offered him something to drink, at which point he requested and received water.
After Dando concluded they were "getting basically no place" with Samander, he asked: "[W]hy did you hit your wife?" According to Dando, Samander immediately looked up at him and stated: "She made me mad." After the airbags went off, Renu was scared, exited the van, and began to walk back toward Dollar City.
Samander then told Dando that, after Renu got out of the van, he backed off of the tree, pulled forward, stopped, and told Renu to get back in the van. When she did not do so, he ordered her to get in. When she again refused, he became angry. Samander asserted that she was supposed to listen to him, because she was his wife and had only been there for three weeks.
Renu began to run away from the van. Samander started to "go forward with the van and to chase after her." He told Dando that "his intention was to teach her who the boss was. He wanted to teach her a lesson, and he wanted to bump her with the van." As he approached the store fronts, he turned and struck Renu with the right front side of his minivan. He told Dando that, shortly after hitting Renu, the van stalled and came to a stop. He was unable to start it again. Samander told Dando that he did not go near Renu after she fell to the ground because he was scared.
According to Dando, Samander appeared "relieved" at that point. Although it was almost 5:00 a.m., Dando testified that Samander did not show signs of sleepiness.
Dando then asked Samander whether he would be willing to make a recorded statement. Samander agreed to do so. The tape-recorded statement began at 5:15 a.m. Gerba again advised Samander of his
Later on August 25, with assistance from Shal, the police found a coffee mug containing alcohol and a bottle of scotch at Dollar City.
Renu, was pronounced dead on August 27. Samander was charged with murder on August 28.
Following his indictment on December 21, Samander filed a motion to suppress the statements he made in the early morning hours of August 25. The motion judge held an evidentiary hearing over five days in March 2006. On May 5, he denied the motion to suppress. The judge concluded:
Samander filed a motion for a stay of the proceedings pending a motion for leave to appeal the denial of the motion to suppress. The judge denied the motion. He then filed a notice of appeal instead of a motion for leave to appeal. We dismissed the appeal as interlocutory. A second motion for a stay was denied in February 2007.
Trial began on May 24 and concluded on July 9, 2007. During the trial, Nyitrai testified that he advised Dando that he had given Samander the
At the trial, Dando denied that he had screamed at, threatened, or made any promises to Samander during the pre-interview interrogation. He also testified that he asked leading questions during the recorded statement to "keep everything running in a chronological order," as he already had Samander's answers written down on his note pad. However, he destroyed his notes from the pre-interview interrogation after they were "transposed into [his] report."
At the close of its case, defense counsel made a motion to dismiss, which was denied. During the charge conference, defense counsel requested an adverse inference charge with respect to the notes destroyed by Dando. The judge declined to give such a jury instruction.
The jury found Samander guilty of purposeful or knowing murder and, consequently, did not consider aggravated assault or vehicular homicide, which the judge had charged as lesser included offenses. Samander was also found guilty of third-degree attempting to leave the scene of a fatal motor vehicle collision. Samander moved for a new trial, which was denied.
At sentencing, the judge found aggravating factors one, that the circumstances surrounding the offense were depraved, three, "[t]he risk that defendant [would] commit another offense," and nine, the "need [to] deter[] defendant and others from violating the law."
This appeal followed.
On appeal, Samander raises the following issues:
We turn first to the denial of Samander's motion to suppress his statements to the police. He argues that his statements were not the result of a knowing and voluntary waiver of his
In reviewing a trial court's denial of a
A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her
Before considering the validity of a waiver of
Here, Samander was initially unwilling to answer questions after Nyitrai gave him the first set of
After Samander was returned to police headquarters, Nyitrai concluded from his investigation that the police were dealing with a serious assault rather than a DWI and an injury resulting from a related accident. When the investigators returned to police headquarters after their lengthy investigation of the parking lot at the Mall, Dando asked Samander if he was willing to speak with him. When Samander responded that he was, Gerda administered the
In light of the significant interval between the initial unwillingness to speak to Nyitrai, the two intervening administrations of
A trial court will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent and voluntary.
Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights.
A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion.
There was testimony at the
The judge's findings of fact were supported by sufficient credible evidence in the record before him.
Samander's next argument is that the trial judge erred in refusing to give the requested adverse-inference charge with respect to Dando's destruction of his notes from the pre-interview interrogation. The trial judge denied the request because he determined that the State was "under no obligation to preserve handwritten reports prepared by officers in the field."
By the time of Samander's trial in 2007, the Supreme Court had twice expressed its disapproval of the police practice of routinely destroying notes.
In
However, the Court delayed implementation of its ruling:
The State argues that the Court's delayed implementation precludes a reversal in this case on the basis of the judge's refusal to give an adverse inference charge. We disagree.
In
The recorded statement and Dando's testimony about the pre-interview interrogation were used by the State to support its assertion that Samander was guilty of purposeful or knowing murder, as opposed to the lesser offenses of aggravated manslaughter or vehicular homicide.
We conclude that there was a realistic potential that Dando's contemporaneous notes could have assisted defense counsel in challenging Dando's testimony and the truthfulness of his recorded statement. Such efforts might well have been effective in persuading the jury to acquit Samander of murder in favor of one of the lesser offenses charged by the jury. Such a result is significant because, for example, the sentencing range for aggravated manslaughter is between ten to thirty years,
Although there was very strong evidence that Samander's conduct was criminally culpable, there was clearly a jury question as to whether his conduct rose to the level of purposeful or knowing murder. Because much of the direct evidence of Samander's intent and state of mind came from Dando's testimony about the unrecorded pre-interview interrogation and the recorded statement based largely on leading questions, Dando's credibility was extremely important to the defense. Although there is no basis in the record to warrant suppression of the evidence based upon the type of due process violation discussed in
We affirm the conviction for attempting to leave the scene of a fatal accident. However, we reverse the conviction for murder and remand for a new trial on that charge. In light of our reversal, we need not reach the issue of whether the verdict with respect to the murder charge was against the weight of the evidence adduced at trial.
Affirmed in part, reversed in part.