NOT FOR PUBLICATION

PER CURIAM.

On the evening of February 4, 2002, defendant Llewelyn James entered his aunt's boyfriend's house. He found his aunt, her boyfriend, and two of their friends smoking cocaine and listening to music. Defendant shot and killed his aunt's boyfriend because he physically abused her, and then proceeded to shoot and kill his aunt and her companions. He also took $200 from the purse of one of his victims. The next night, defendant and a friend wanted to purchase marijuana from a man in a neighboring town. When his dealer refused to open the door, defendant shot, but did not kill him. Then, defendant proceeded to shoot and kill a man he encountered before he shot his dealer and a man he encountered after this shooting. Defendant thought these men might have seen him approaching or leaving his dealer's apartment. Defendant was seventeen years old. He is serving an aggregate term of 315 years in prison, almost 268 years of which must be served before he is eligible for parole.

We address two primary issues in this appeal. First, whether the court should have permitted the State to introduce statements made by defendant during a consensual intercept of a conversation between defendant and his cousin. Second, whether the court properly permitted the State to introduce statements made by defendant during a custodial interrogation. We hold that the intercepted conversation between defendant and his cousin was properly admitted. We also hold the consent provided by a maternal uncle when the police could not contact defendant's mother was effective under the circumstances of this case and affirm.

A jury convicted defendant of six counts of murder, N.J.S.A. 2C:11-3a(1)(2) (Counts One, Three, Five, Seven, Eleven and Thirteen); four counts of felony murder, N.J.S.A. 2C:11-3a(3) (Counts Four, Six, Twelve and Fourteen); one count of attempted murder, N.J.S.A. 2C:11-3a (Count Fifteen); two counts of unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Counts Nine and Sixteen); and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Ten and Seventeen). Judge Thomas A. Brown, Jr., merged Counts Four, Six, Twelve, and Fourteen (felony murder) with Counts Three, Five, Eleven and Thirteen (murder), respectively; and Counts Ten and Seventeen (possession of a weapon) into the murder convictions. On each murder conviction, the judge imposed fifty-year terms of imprisonment subject to the No Early Release Act (NERA)1 85% parole disqualifier, consecutive to each other but concurrent to the sentences imposed on Counts Nine and Sixteen. On Counts Nine and Sixteen (unlawful possession of a handgun), the judge sentenced to defendant to concurrent four-year and three-year terms of imprisonment, respectively. On Count Fifteen (attempted murder), the judge sentenced defendant to a fifteen-year term of imprisonment subject to NERA, consecutive to the murder convictions and concurrent to Counts Nine and Sixteen. The aggregate sentence is 315 years imprisonment with an 85% parole disqualifier. The appropriate fines and penalties were also imposed.

Defendant's mother, Fern Ferguson, sent her son to live with her relatives in Winslow Township because she believed it would be a better environment than her neighborhood in Philadelphia. Defendant attended the Burlington County Special Services School District in Westhampton and returned home to his mother many weekends. He lived at 150 Stevens Avenue in the West Atco neighborhood of Winslow Township with three maternal uncles, Alvin, Reginald and Walter Bethune; a maternal aunt, Una Bethune; his grandmother, Ellen McCann; Una's father, Alvin James McCann; his twenty-one year old cousin, Antwon Bethune and his girlfriend and their child; and Alvin Bethune's son, Terrell Darrison. Una2 also lived at times at 122 Stevens Avenue with Absalom Giddings.

The home at which Giddings lived was owned by Tyrone Acosta. Acosta testified that he met Giddings and a person identified as Una's nephew at approximately 3:30 p.m. on February 4, 2002. Giddings borrowed between $50 and $150 from Acosta, and he drove Giddings and the nephew to his house at 122 Stevens Avenue. Acosta also testified he kept a handgun and ammunition in a bedroom of the house at 122 Stevens Avenue.

Corlis Williams, one of the victims, collected $526 rent money in cash from John Granroth between 4:30 and 5:00 p.m. on February 4, 2002. At approximately 10:45-10:50 p.m., Jonah Davis, a cousin of Una and defendant, passed 122 Stevens Avenue. Una approached him asking if he had any drugs. Davis returned shortly with $200 worth of crack cocaine. When he returned, he saw Una and two other persons in the living room and Giddings and defendant in a bedroom in the rear.

At around 8:30 p.m. on February 4, 2002, Antwon saw defendant arrive at 150 Stevens Avenue in a car owned by Donald Mays, Jr., another victim. At the time, Antwon was working with his uncle, Reginald, outside 150 Stevens Avenue, installing an entertainment system in Reginald's truck. Antwon did not see defendant leave 150 Stevens Avenue, but defendant "pulled up" to 150 Stevens Avenue at approximately 11:00 p.m., helped Antwon's girlfriend, Shauntae Caraballo, bring shopping bags into the house, and then told Antwon they needed to talk.

According to Antwon,3 defendant showed him a.380 caliber handgun, which Antwon recognized as the gun kept at 122 Stevens Avenue. Antwon related defendant told him and Caraballo that he shot Giddings due to some unspecified threat to Antwon and one of their uncles. Defendant then told Antwon he shot his aunt, who ran into the kitchen and "played dead," and shot her again as she attempted to flee. He shot Corlis Williams in the back as she attempted to flee and then shot Donald Mays, Jr. Then, he shot each victim in the head, cleaned up the scene, threw the latex gloves he wore into a fire pit, and left the radio on tuned to a gospel station.

The next night, defendant and Ronald Kemp went to the Greentree Apartments in Lindenwold at approximately 10:00 p.m. to purchase marijuana from Torrance Lomax. Defendant was armed with a gun. Defendant told Kemp he took it from Giddings and he had shot four people with it. Kemp identified at trial the same gun identified by Acosta.

Defendant tried to force his way into the apartment behind Lomax's sister and her boyfriend as they entered the front door. When the door closed in his face, defendant kept knocking on the door. Lomax came out of his apartment, raised the blinds on the exterior door, and defendant shot Lomax in the face and chest.

Kemp and defendant fled. Kemp testified he did not recall passing anyone on their way to Lomax's apartment. As they ran, however, Kemp heard defendant tell someone to "get down," he saw him go through the man's pockets, and, as Kemp asked defendant what he was doing, defendant shot the man in the head. A.380 caliber shell casing was recovered next to the body. The victim was Kasim Dale, who had left his apartment at approximately 10:00 p.m. to walk to his mother's apartment in the Greentree complex.

Kemp ran from the scene and did not witness the final shooting. A neighbor of the final victim, Christopher Ferguson, heard what he believed to be a gunshot shortly after 10:00 p.m. When the neighbor noticed Ferguson's front door was ajar the next morning, the neighbor dispatched his son to check on Ferguson. The boy found Ferguson's body, his legs in the kitchen and the rest of the body "slumped over the basement steps." A.380 caliber shell casing was recovered at the scene.

Alvin James McCann, Una's father, filed a missing persons report for Una on February 6, 2002. Una, Giddings, Williams and Mays, the Winslow victims, were not discovered until approximately 5:40 p.m. on February 7, 2002. Police found Giddings and Mays in the living room, Una in the kitchen, and Williams near the basement door. Police found crack pipes in the hands or near each victim. There was no sign of forced entry or any money in the house. Police found cartridges from a.380 caliber automatic firearm on top of Giddings' body, another next to his body, and one next to Una's body. Other spent cartridges were found in the house, as well as a partially empty box of .380 caliber cartridges found in the closet of a first-floor rear bedroom. Police found no fingerprints, DNA or other physical evidence at the scene.

The county medical examiner testified that Giddings was shot twice in the head. Either wound would have been fatal. Una had a fatal gunshot wound to the head, as did Mays. Williams suffered fatal gun shot wounds to the chest, which severed her aorta, and to the lower back that injured her liver, kidney, and pancreas. Dale and Ferguson, the Lindenwold victims, received fatal gunshot wounds to the head.

The bullets recovered from the victims were.380 caliber automatics, some with a full metal jacket and some hollow-point. Acosta testified he kept both types of cartridges at 122 Stevens Avenue. All of the recovered bullets were discharged from the same firearm.

Police retrieved the gun in Philadelphia. During a visit to Philadelphia on approximately February 15, defendant showed the gun to James Marrow, a sixteen-year old neighbor. Marrow took the gun and placed it under the seat of his brother's car. When the brother learned the gun was in his car, he retrieved it, placed it in a red "Nike" bag from his trunk, and threw it onto the roof of an abandoned house at 2130 Toronto Street in Philadelphia. Police obtained a search warrant for the premises and located the gun, a Bryco.380 semi-automatic handgun, with four live bullets.

Other than the statement obtained from the consensual intercept conversation between Antwon and defendant and the custodial interrogation of defendant, both of which are principle errors cited by defendant in this appeal, there are other statements and conduct by defendant in support of his involvement in these six murders and one attempted murder. For example, on February 5, 2002, the day following the first four murders, defendant told Antwon that he had gone shopping at the mall and bought clothing and boots. While they were watching the 11:00 p.m. news, they heard a report of the Lindenwold shootings. Defendant stated to Antwon, "Like I told you, you[`re] messing with a natural born killer." When Antwon asked him what he meant, defendant replied, "man, that's my work. I did that." As he provided more details of the Lindenwold shootings, defendant told Antwon he shot Dale and Ferguson because he believed they had seen him approaching Lomax's apartment.4 Sometime in February 2002, defendant told a classmate he had killed his aunt and her boyfriend. He explained he killed the boyfriend in self-defense. On or about February 15, 2002, defendant told Marrow, the sixteen-year old neighbor in Philadelphia, that he killed his family members in order to "leave no witnesses."

Antwon first spoke to police on February 8, 2002. He did not mention defendant's statements about his complicity in both sets of murders until February 22. On that day, he went to the prosecutor's office after consulting a lawyer. He related the conversations with defendant on February 4 and 5 after each set of shootings. He offered to participate in a recorded conversation with defendant. Antwon acknowledged he was aware a $25,000 reward for information about the killings was available. He denied the reward motivated his statement. He cited concern for implicating a family member and concern that defendant might continue to pose a threat to his family.

During the consensual intercepted statement, defendant reiterated his contemporaneous statements to Antwon and Caraballo. This conversation led to a custodial interrogation in which defendant stated he killed Giddings for "beating on" Una, and killed Una, Williams and Mays to leave no witnesses. After defendant gave his statement, another detective took defendant's fingerprints. Defendant spontaneously stated during the fingerprinting process that he would only serve four years as a juvenile and "next time he would use gloves so he wouldn't get caught."

On appeal, defendant raises the following arguments:

I.

Defendant argues the court erred by admitting statements he made as a juvenile in police custody. He contends his mother did not waive his Miranda5 rights, thereby barring admission of his statement. Furthermore, the uncle who appeared at the police station and waived defendant's Miranda rights had a conflict of interest that negates the waiver. Defendant also argues the police failed to advise him that he was a suspect, and a spontaneous statement uttered by him is inadmissible as fruit of improperly elicited statements.

On February 8, 2002, Investigator Kevin Kellejan went to 150 Stevens Avenue where he encountered Acosta, Alvin James McCann, Antwon and Fern. At this time he learned defendant was a juvenile. The family members let Kellejan speak to defendant, who admitted being with his aunt and Giddings earlier in the evening of February 4. Defendant also stated he knew Giddings had purchased drugs at that location and carried a gun. Acosta stated he owned and kept a.380 caliber handgun at the house.

The next day, defendant and Antwon were interviewed at the Winslow police department. Fern arrived separately and consented to an interview without stating she wished to be present. At this time Kellejan learned Fern lived in Philadelphia and defendant lived with relatives at 150 Stevens Avenue. During this interview, defendant stated he saw all four victims at 122 Stevens Avenue on February 4 and that they were smoking crack.

Defendant was interviewed again on February 21 for approximately three hours. Walter Bethune, another uncle with whom defendant did not live, consented to the interview. Kellejan did not administer Miranda warnings because defendant was not in custody.

Following Antwon's February 22 interview with police, police went to 150 Stevens Avenue to get defendant. When they arrived, they asked defendant's uncle, Alvin Bethune, to get defendant and they took him to the police station. Alvin followed separately. A police lieutenant told Alvin that the police needed someone to consent to a conversation between defendant and another person to be recorded with only the knowledge of the other person. According to the lieutenant, Alvin told him that three people represented defendant's interests: himself, defendant's grandmother Ellen McCann, and Reginald Bethune, another uncle with whom defendant lived at 150 Stevens Avenue. Alvin consulted Ellen and then consented to the conversation.

At the motion to suppress, Alvin testified the police asked him what he thought had happened, and the police investigators told him "[h]ow we were going to try to work together to resolve the situation." He stated his concern that his family's safety required identification of the perpetrator. The police asked him to name defendant's guardian and the person who made decisions for defendant, if the need arose. Alvin answered that he supposed it would be himself, even though he knew that Fern "took care of everything" except for school matters, which she delegated to their brother Reginald. Fern made all the important decisions concerning defendant by herself, she did not give that responsibility to anyone else, and she was readily reachable by telephone when such a decision was needed.

Alvin said that he gave the police Fern's telephone number, and that the lieutenant tried once or twice to reach her, but told him he received a busy signal. Alvin then called Ellen to discuss the situation and consented on defendant's behalf.

At first Alvin testified that he understood his consent to apply only to Antwon, even though he knew at the time that Antwon was an adult, and that he consulted Ellen only about whether Antwon should wear a wire. However, when shown the transcript of his acknowledgment of consenting as defendant's representative or guardian to the consensual intercept, Alvin agreed that he understood at the time that he had the right to decline consent, and that he was not threatened or coerced.

The intercepted conversation between Antwon and defendant occurred at the county prosecutor's office. A sergeant in the prosecutor's office met defendant at the office and escorted him to an interview room. A key card was required to enter the interview room from the lobby but not to leave the room and the police station. Defendant always had access to a nearby restroom.

The sergeant brought defendant into an interview room where Antwon was waiting. The sergeant told defendant that Antwon wanted to speak to him. This room was within a secure area that required a key card to leave. Either the door to the room where the intercepted conversation occurred or the door to the secured area was propped open at least part of the time the two conversed. The conversation between defendant and Antwon started at 7:45 p.m. Antwon was instructed before the conversation to sit still to avoid static on the transmission. Prosecutor's detectives reiterated the instruction during a contrived break in the conversation. At the beginning of the conversation with defendant, Antwon intimated he had been beaten.

Defendant asked Antwon what was happening. Antwon replied that defendant had left out some details, including that Kemp accompanied him to Lomax's apartment, and the inconsistencies contributed to a suspicion that Kemp, not defendant, was the shooter. Antwon repeatedly asked defendant to provide details and defendant obliged. At some point in the conversation, defendant told Antwon he had been at the prosecutor's office for a few hours and was ready to "bounce," i.e., leave.

The prosecutor's lieutenant testified that the information provided by defendant during his conversation with Antwon convinced the police and prosecutor that defendant should be charged with the offenses. At that time, defendant was in custody and Kellejan read and explained the juvenile version of the Miranda rights to defendant and Alvin.

Alvin consented to the interview but does not recall receiving an explanation of the form or a discussion that he was acting as defendant's guardian. Alvin testified that he consented because he was the only responsible adult present. He did not try to call Fern. He told Kellejan he did not want to be present for the interview.

Defendant's mother, Fern, testified that defendant stayed with her on weekends and holidays but lived in Winslow during the week. She insisted she never surrendered her parental rights and only permitted her brother, Reginald, to act on defendant's behalf for school purposes. She also testified that Ellen, Alvin, Walter and Reginald knew she was to be consulted on anything important concerning defendant. Fern stated the police did not call her on February 22 until after defendant had been arrested.

The transcript of defendant's statement reveals that Alvin was present, defendant acknowledged his presence, stated he had no objection to Alvin's expressed desire to leave the room, and stated he understood his Miranda rights. Kellejan repeated each Miranda right and warning and defendant stated again he understood them. Defendant stated he understood that he could stop the interview to consult with a parent or guardian.

At the motion to suppress, defendant produced a forensic psychologist, Bruce Frumkin, who opined that defendant did not likely have a full understanding of his Miranda rights or have the ability to intelligently and voluntarily waive those rights. Frumkin cited intellectual impairment, yet conceded defendant might have been faking his limitations. He cited research showing that juveniles aged sixteen with an IQ 80 or lower lack the ability to make an intelligent waiver. He also declined to opine on whether defendant gave a voluntary statement. He thought this issue involved whether police used undue influence, which is a legal rather than a clinical issue.

Judge Eynon held that the rule at the time of the consensual intercept required consent by a responsible adult, but failure to obtain his mother's consent was of no consequence because defendant was not in custody at the time, defendant initiated the conversation with Antwon, and the police did not unduly influence or use physical force to obtain defendant's statement. The judge also found the police made a "proper" effort to reach defendant's mother to obtain her consent. He further found Alvin was a responsible adult, who acted deliberatively, and with no conflict of interest.

Judge Eynon also found that Alvin and defendant consented to the custodial interrogation. He found Alvin and defendant decided jointly that Alvin would not be present. He further found defendant understood his Miranda rights and waived those rights "without any intimidation, fear [or] threats."

Judge Eynon discounted the psychologist's opinion. He noted Frumkin never asked defendant to describe his understanding of the Miranda rights on February 22.

When a defendant challenges a statement made by him to the police, the State must prove beyond a reasonable doubt that the waiver of his or her Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). Accord State v. Knight, 183 N.J. 449, 461-62 (2005). Appellate courts will uphold the trial court's finding of admissibility under the "totality of the circumstances" as long as there was "sufficient credible evidence" to support it, even for statements given in police custody that amount to a confession. Knight, supra, 183 N.J. at 468; see State v. Elkwisni, 384 N.J.Super. 351, 366 (App. Div.) (based on the totality of the circumstances, the words "`I read him his rights,' or `I advised him of his rights'" insufficient to prove the Miranda warnings were provided to and understood by the defendant), certif. denied, 187 N.J. 492 (2006).

Under this standard, an appellate court does not engage in "`an independent assessment of the evidence as if it were the court of first instance,'" Elkwisni, supra, 384 N.J. Super. at 366 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), unless the statement has been video and audio recorded as has been required since January 1, 2006, for homicides. For these statements, the Supreme Court has recently stated that when the motion judge views a video recording and listens to an audio recording of a custodial interview and makes credibility determinations based on that action rather than the testimony of witnesses in a courtroom, an appellate court owes no greater deference to these findings. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012). Here, however, Judge Eynon made his findings based on live testimony. Therefore, we are "not permitted to `weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Locurto, supra, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Accord Elkwisni, supra, 384 N.J. Super. at 366.

In Miranda, the United States Supreme Court established prophylactic rules to protect the right assured by the Fifth and Fourteenth Amendments against self-incrimination during the "in-custody interrogation of persons suspected or accused of crime...." 384 U.S. at 467, 86 S. Ct. at 1624, 120 L. Ed. 2d at 719. The Miranda rules and requirements do not apply until the moment "when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way." Id. at 477, 86 S. Ct. at 1629, 120 L. Ed. 2d at 725.

Our inquiry is whether the defendant gave the statement after being arrested, or after otherwise suffering a limitation on his or her freedom to leave of "`the degree associated with a formal arrest.'" Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983)). It turns on an "objective" assessment of the "compulsive aspect" of the circumstances of the interrogation rather than on "`the strength or content of the government's [undeclared] suspicions at the time.'" Id. at 322-23, 114 S. Ct. at 1528-29, 128 L. Ed. 2d at 298-99 (quoting Beckwith v. United States, 425 U.S. 341, 346, 96 S.Ct. 1612, 1616, 48 L. Ed. 2d 1, 7 (1976)). The scope of the New Jersey privilege against self-incrimination and the procedures that New Jersey law requires to protect it are consistent with those for the federal constitutional right against self-incrimination. Knight, supra, 183 N.J. at 461; State v. Burris, 145 N.J. 509, 520 (1996).

Custody accordingly "`depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 615-16 (2007) (quoting Stansbury, supra, 511 U.S. at 323, 114 S. Ct. at 1529, 128 L. Ed. 2d at 298). The determination is "fact-sensitive" and must be made on a case-by-case basis, State v. Stott, 171 N.J. 343, 364 (2002), by evaluating "the totality of the circumstances from the perspective of a reasonable person in [the] defendant's position," State v. Smith, 374 N.J.Super. 425, 435 (App. Div. 2005). Accord Yarborough v. Alvardo, 541 U.S. 652, 663, 124 S.Ct. 2140, 2149, 158 L. Ed. 2d 938, 950-51 (2004). It involves consideration of the length of the interrogation, its place and time, the nature of the questions, and the conduct of the interrogators. Smith, supra, 374 N.J. Super. at 431; State v. Coburn, 221 N.J.Super. 586, 595-96 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

Among those objective factors, the "critical determinant" is whether there was "a significant deprivation of the suspect's freedom of action...." State v. P.Z., 152 N.J. 86, 103 (1997). "[C]ustody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Coburn, supra, 221 N.J. Super. at 596. By contrast, an interrogation is investigatory rather than custodial if "the restriction on a defendant's freedom is not of such significance as to compel the conclusion that his liberty is restrained." State v. Smith, 307 N.J.Super. 1, 8-9 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998).

For example, an interrogation conducted in a police station is not necessarily custodial. State v. Micheliche, 220 N.J.Super. 532, 536 (App. Div.), certif. denied, 109 N.J. 40 (1987); State v. Lutz, 165 N.J.Super. 278, 284 (App. Div. 1979). Miranda warnings are not required "simply because questioning takes place in a police building or because the person being questioned is a suspect in the case." Micheliche, supra, 220 N.J. Super. at 536. Accord Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (Miranda warnings not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect").

The "totality of the circumstances" of an interrogation or confession includes "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.'" Presha, supra, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)). The suspect's prior interactions with the police may also be probative. Ibid.

While that framework applies to both juveniles and adults, ibid., juveniles are "generally considered more susceptible than adults to psychological and other pressures," so "a higher standard of voluntariness is appropriate" to admit their confessions,6 State in re J.F., 286 N.J.Super. 89, 97 (App. Div. 1995). Due process requires treating a juvenile "with the utmost fairness and with every consideration that his age and all of the surrounding circumstances indicate should have been accorded him." State in re R.W., 115 N.J.Super. 286, 294-96 (App. Div. 1971), aff'd o.b., 61 N.J. 118 (1972). Accord State in re S.H., 61 N.J. 108, 115 (1972). It "includes having his parents present, whenever possible, and giving the Miranda warnings...." R.W., supra, 115 N.J. Super. at 295. Therefore, when defendant was interrogated in February 2002, a parent or legal guardian should have been present, whenever possible. Presha, 163 N.J. at 315. In evaluating whether a confession of a juvenile of any age is voluntary, the judge "should consider the adult's absence as a highly significant factor among all other facts and circumstances." Ibid.

The parent must "act[] with the interests of the juvenile in mind," but that does not require the parent to remain present during the interrogation. See A.S., supra, 203 N.J. at 136 ("a parent should be present, if at all possible, during the interrogation of a juvenile"); State in re Q.N., 179 N.J. 165, 174-75 (2004). The parent may advise the child "to cooperate with the police or even to confess to the crime if the parent believes that the child in fact committed the criminal act." A.S., supra, 203 N.J. at 148. Accord Q.N., supra, 179 N.J. at 177.

The parent does not necessarily have to be free of a "perceived clash" of interest "based on a familial relationship with the victim or another involved in the investigation." A.S., supra, 203 N.J. at 154. Such a parent, or other adult who has an interest in the juvenile's welfare and is not acting in concert with the police, may still "be able to fulfill the role envisioned in Presha." Ibid. As for the ability of another adult to fill that role, Presha did not specify that such person must have been appointed as the juvenile's legal guardian, id. at 154-55, and neither did the prior cases that referred to the juvenile's "parents or guardian" without elaboration, S.H., supra, 61 N.J. at 114-15; State in re Carlo, 48 N.J. 224, 240-41 (1966); J.F., supra, 286 N.J. Super. at 98.

While Presha emphasized the presence of a parent or other adult by giving it greater weight in the voluntariness analysis than all other factors, it did not make an adult's presence an absolute requirement. Presha, supra, 163 N.J. at 315-16. Instead, the Court required the police to "use their best efforts to locate the parent or legal guardian" before starting an interview. Id. at 308. In doing so, the Court incorporated J.F.'s requirement that police exercise a "good faith effort" to locate the parent, J.F., supra, 286 N.J. Super. at 98, and S.H.'s guideline that a parent must be present "whenever possible," S.H., supra, 61 N.J. at 114-15. Presha, supra, 163 N.J. at 314.

We apply the law governing custodial interviews of juveniles in effect in 2002.7 At the time of the intercepted conversation with Antwon and defendant's custodial interrogation, this court had held that Presha required the police to seek parental consent whether or not the juvenile was questioned in a custodial setting. State v. J.D.H., 336 N.J.Super. 614, 625 (App. Div. 2001), rev'd, 171 N.J. 475 (2002). Several weeks after defendant gave his February 22 statements, the Supreme Court reversed. The Court held that the requirement of parental consent applied only to custodial interrogations and that none of the policies and concerns discussed in Presha are implicated by a consensual intercept during which the juvenile is not in custody. J.D.H., supra, 171 N.J. at 480-81.

Here, we hold that the failure to obtain consent for the intercepted conversation between Antwon and defendant from defendant's mother does not require suppression of his statements made during this conversation. In doing so, we apply the Supreme Court's decision in J.D.H., which did not establish a new rule of law, but simply re-established a "well-settled principle of constitutional jurisprudence" that custody is the trigger for application of the protections due to all accuseds, including juveniles.

Moreover, the record contains sufficient credible evidence at the Miranda hearing to support the ruling that defendant was not in custody during the consensual intercept. He went to the police station willingly, as he did for his prior interview there, and was given a visitor's pass. The need for a key card to enter the secure area containing the interview room was an ordinary security measure even for civilian settings rather than a hallmark of custody. The police did not compel defendant to speak to Antwon; he spoke to Antwon freely. Defendant and Antwon shut the door to the room that they used in order to maintain their ostensible privacy. The door was not locked, and defendant knew he only had to knock to get an officer's attention, if he wanted to leave. The police instructions for someone not to move or to stand up against a wall were given to Antwon outside of defendant's presence and related to assuring an audible transmission.

Antwon embellished his urgings about the seriousness of the matter with the suggestion of the use of force against himself, such as having had all his teeth knocked out, a fact which defendant surely would have noticed and mentioned if true. Defendant nonetheless expressed confidence that he was being treated as a visitor and would be taken home when he decided to "bounce." The evidential record developed at the hearing permitted Judge Eynon to find that there was no significant impairment of defendant's ability to leave when he desired, and no basis for him reasonably to perceive an impairment. The absence of custody was enough to make the consensual intercept admissible.

The State had the burden of showing that they established Fern's unavailability before they sought Alvin's consent on defendant's behalf to conduct a consensual intercept. Judge Eynon found they tried to telephone her with Alvin's help but only heard a busy signal. She lived in Philadelphia, and the record is barren of any means other than telephone to reach Fern. Although repeated telephone calls would have been easy to make on this record, their likely utility would have been speculative.

The consent given by Alvin to permit the interrogation following the intercepted statement is a closer issue. Certainly, this interrogation occurred in a custodial setting, and defendant's mother should have been present. Alvin was a responsible adult interested in defendant's welfare, and our case law did not require him to be defendant's legal guardian, or to be present during the taking of defendant's statement. Moreover, the police made reasonable efforts to obtain defendant's mother's presence and consent. Finally, Alvin's relationship to Una and his interest in learning the truth about her murder did not categorically disqualify him from advising defendant in the absence of his mother. This record stands in stark contrast to A.S. in which the fourteen-year old juvenile was charged with conduct that, if committed as an adult, would constitute first degree aggravated sexual assault. A.S., supra, 203 N.J. at 135. The victim was the four-year old grandson of the juvenile's adopted mother. Id. at 137. Moreover, the adopted mother did more than counsel her daughter; she was enlisted by the police as their helper during the interrogation process. Id. at 150.

Furthermore, the police had no duty to tell defendant before he gave his statement that they considered him a suspect. Defendant incorrectly relies on State v. A.G.D., 178 N.J. 56 (2003), which does not require any disclosure when the Miranda warnings are administered to a suspect other than that an indictment or arrest warrant has been issued. Id. at 67-68. See also State v. Nyhammer, 197 N.J. 383, 406 ("The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime."), cert. denied, ___ U.S. ___, 130 S.Ct. 65, 175 L. Ed. 2d 48 (2009).

As for defendant's mental capacity to make a knowing and intelligent waiver, the only contrary evidence was Frumkin's testimony. Frumkin admitted that he believed defendant was faking impairment in the tests that he administered, which implied that defendant was similarly motivated and able to fake impairment in the IQ test administered ten months after his arrest. The record fully permitted Judge Eynon to infer that Frumkin had deliberately avoided some natural and appropriate inquiries about defendant's ability, and that the degree of avoidance made his opinions too conjectural to be reliable.

Finally, having concluded that defendant's February 22 statements were admissible, his contention that the court should have barred his spontaneous utterance must fail. The admissibility of prior statements made the utterance admissible as well.

We, therefore, affirm the order denying defendant's motion to suppress the consensual intercept and his custodial statement.

II.

Having reviewed the entire record, we conclude that defendant's further arguments that the trial judge should have severed the Lindenwold murders from the trial of the Winslow murders, that the trial judge erred by admitting evidence of a jailhouse threat to kill Antwon and the attempted murder, that some comments by the prosecutor in summation were improper, that the trial judge should not have admitted Marrow's prior inconsistent statement, and that the trial court erred in permitting a friend of defendant to identify his handwriting are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III.

We also reject defendant's argument that the sentence imposed by Judge Brown is manifestly excessive. The sentence is derived from six consecutive fifty-year terms of imprisonment for the six murder victims and a consecutive fifteen-year term of imprisonment for the attempted murder of Lomax. Defendant contends the judge should have imposed concurrent terms for the murders of Una, Giddings, Williams and Mays because these murders occurred at the same place and time. He further argues that the judge should have imposed only one consecutive term, presumably for one of the Winslow murders, because two consecutive terms would assure his imprisonment for life.

We agree with the assessment of Judge Brown. Four of the shootings occurred at the same time and place but for different reasons. Each shooting was an independent event. The Lindenwold shootings were completely independent of the earlier killings, except for the use of the same weapon. Furthermore, defendant killed Dale because he believed Dale may have seen defendant approach Lomax's apartment and defendant killed Ferguson because he feared Ferguson might have witnessed his interaction with Dale. The events are related but also independent acts.

Defendant urges this court to find his sentence excessive under Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012). Miller involved two fourteen-year-old boys, each convicted of one count of murder and received a mandatory life sentence without parole. Id. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d 415. Notably, Arkansas and Alabama laws provided no discretion in sentencing. Ibid. In finding such mandatory sentences "[p]revent[] those meting out punishment from considering a juvenile's `lessened culpability' and greater `capacity for change,' Graham v. Florida, 560 U.S. ___, ___, [___,] 130 S.Ct. 2011, [2026, 2030,] 176 L. Ed. 2d 825, [841, 845] (2010), and run[] afoul of our cases' requirement of individualized sentencing for defendants facing the most serious penalties[,]" the Supreme Court "h[e]ld that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on `cruel and unusual punishments.'" Id. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d 415-16 (emphasis added). The Court based its decision on "two strands of precedent," one being a "categorical ban[] on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty[,]" the other "a prohibit[ion on] mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death." Id. at ___, 132 S. Ct. at 2463-64, 183 L. Ed. 2d at 18-19.

Defendant argues his sentence, though not mandatory, equates to a life sentence without parole and, therefore, runs afoul of Miller. Here, however, the distinction between the Miller mandatory sentences and defendant's discretionary one renders Miller inapposite. In fact, his discretionary sentence runs afoul of neither precept upon which the Court based Miller.

Finally, consecutive terms recognize that each victim was an individual whose life defendant extinguished or severely altered. To make any of these sentences concurrent produces a "free crime." 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), We, therefore, hold that the sentence, albeit severe, fully comports with the principles identified in Yarbough and discern no basis to disturb the sound discretion of the trial judge. Ibid.

Affirmed.