                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1159-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VERLANCE BUDDINGTON,

     Defendant-Appellant.
_______________________________

                    Submitted October 16, 2018 – Decided October 30, 2018

                    Before Judges Hoffman and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 15-05-0688.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rochelle Watson, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Svjetlana Tesic, Assistant Prosecutor, on
                    the brief).

PER CURIAM
       After pleading guilty to aggravated manslaughter pursuant to a plea

agreement, and receiving a twenty-four-year prison term,1 defendant filed this

appeal, challenging the pretrial order permitting the admission of defendant's

custodial statements for impeachment purposes, if he should testify. Defendant

also appeals his sentence. We affirm.

       On October 8, 2014, defendant shot and killed Hassan Byrd, who owed

defendant $5000. After witness interviews and a surveillance video identified

defendant as the shooter, the police arrested defendant inside a friend's

apartment. The officers recovered a 9mm Springfield Armory XDM-9 handgun

from the hallway outside of the apartment, inside of an empty diaper box. The

shell casings recovered next to the victim were also 9mm. The police questioned

defendant at the police station, where he confessed to the killing.

       While court-ordered evaluations found defendant competent to stand trial,

they also indicated defendant lacked the capacity to properly waive his Miranda2

rights. The State therefore moved to admit defendant's custodial statement for

impeachment purposes, should he testify at trial. The trial judge granted the



1
   Defendant's plea agreement provided for a recommended twenty-five-year
prison term.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                      2                                A-1159-17T4
State's motion, finding "no evidence of police coercion," and that no "threats or

promises were made to [d]efendant at any point during the interview." The

judge noted the short length of the interrogation, and that "[w]hile [defendant's]

intellectual disability is certainly a factor to be considered in the totality of the

circumstances analysis, alone it is not determinative."

      In his written opinion, the judge rejected defendant's argument that his

custodial statements were involuntary, notwithstanding the fact that defendant

did not make an intelligent and knowing waiver of his Miranda rights.

Specifically, the judge cited to Colorado v. Connelly, 479 U.S. 157 (1986) and

State v. Smith, 307 N.J. Super. 1 (App. Div. 1997) in reasoning that "police

coercion is a necessary predicate to a finding that a statement is involuntary,"

and that in this case there was "no evidence of police coercion." The judge

found no "threats or promises . . . made to [d]efendant at any point during the

interview," along with the facts that the interview lasted approximately twenty

minutes, and that the police were not aware of defendant's intellectual

disabilities during the interrogation. Therefore, the judge held that defendant's

custodial statements were admissible for impeachment purposes, should

defendant testify at trial.




                                        3                                  A-1159-17T4
      On June 1, 2017, the court sentenced defendant to twenty-four years in

prison subject to an eighty-five percent parole ineligibility period. This appeal

followed.

      On appeal, defendant presents the following arguments:

            POINT I

                  THE STATE, HAVING CONCEDED THAT
                  DEFENDANT'S    INTELLECTUAL   AND
                  COGNITIVE IMPAIRMENT RENDERED HIM
                  INCOMPETENT TO WAIVE HIS MIRANDA
                  RIGHTS, SHOULD NOT BE ALLOWED TO
                  USE DEFENDANT'S STATEMENT FOR
                  IMPEACHMENT     PURPOSES    DURING
                  CROSS-EXAMINATION.

            POINT II

                  DEFENDANT'S SENTENCE OF TWENTY-
                  FOUR   YEARS   FOR   AGGRAVATED
                  MANSLAUGHTER     IS   MANIFESTLY
                  EXCESSIVE AND THE RESULT OF AN
                  IMPROPER ASSESSMENT OF MITIGATING
                  FACTOR FOUR.

                                           I

      We first address defendant's challenge to the trial court's ruling allowing

the admission of his custodial statements for impeachment purposes.               In

reviewing a trial court's admission of a defendant's confession, our task is to

"engage in a 'searching and critical' review of the record to ensure protection of

a defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015)

                                       4                                 A-1159-17T4
(quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). We defer to the factual

findings of the trial court so long as those findings are supported by sufficient

evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citation

omitted). Our review of the trial court's legal conclusions, however, is plenary.

State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted).

      Defendant argues the trial judge erred in his determination that "evidence

of police coercion was an absolute prerequisite to [a] finding of

involuntariness[,] and the absence of such police coercion was dispositive of the

inquiry."   Defendant contends the judge should have found his custodial

statements were involuntary, based on his intellectual impairments, which

caused the questioning by police to be coercive. We disagree.

      New Jersey has long "adopted and employed the impeachment exception

[to the exclusionary rule] set forth in Harris." State v. Burris, 145 N.J. 509, 524

(1996) (citing Harris v. New York, 401 U.S. 222 (1971)) (other citations

omitted). The impeachment exception maintains the inadmissibility of evidence

subject to the exclusionary rule in a prosecution's case-in-chief, but admits the

otherwise excluded evidence during defendant's cross-examination, should

defendant take the stand.     New Jersey jurisprudence has "recognized and

accepted the Supreme Court's use of the impeachment exception in cases




                                       5                                 A-1159-17T4
involving constitutional violations, as well as Miranda violations of the privilege

against self-incrimination." Ibid. (citation omitted).

      "The impeachment exception is strictly limited to situations in which the

suppressed statement is trustworthy and reliable in that it was given freely and

voluntarily without compelling influences."       Id. at 525 (citing Mincey v.

Arizona, 437 U.S. 385, 397-98 (1978)).

            The United States Supreme Court observed that a
            determination of whether a statement is voluntary
            entails a factual inquiry. It requires careful evaluation
            of all the circumstances of the interrogation, and,
            ultimately, the question is whether the defendant's will
            was overborne. Mincey, 437 U.S. at 397-98. The
            Supreme Court has recognized that if the defendant's
            will was overborne, the confession is not the "product
            of a rational intellect and a free will." Blackburn v.
            Alabama, 361 U.S. 199, 208 (1960). A confession that
            is not the product of such "rational intellect" and "free
            will" is involuntary and is violative of the Due Process
            Clause of the Fourteenth Amendment. Townsend v.
            Sain, 372 U.S. 293 (1963) [(other citations omitted)].

            [Id. at 525-26 (emphasis added).]

      Our Supreme Court has repeatedly emphasized how to analyze voluntary

confession cases, explaining,

            [T]he State must demonstrate the voluntariness of a
            confession beyond a reasonable doubt. State v.
            Galloway, 133 N.J. 631, 654 (1993). An involuntary
            confession can result from physical and psychological
            coercion. Ibid. Confessions are not voluntary if
            derived from "very substantial" psychological
            pressures that overbear the suspect's will. Id. at 656.
                                       6                                 A-1159-17T4
            In determining whether a defendant's will was
            overborne, the totality of the circumstances must be
            examined, "including both the characteristics of the
            defendant and the nature of the interrogation." Id. at
            654. Relevant factors include "the suspect's age,
            education and intelligence, advice concerning
            constitutional rights, length of detention, whether the
            questioning was repeated and prolonged in nature, and
            whether physical punishment and mental exhaustion
            were involved." Ibid. [(other citations omitted)].

            [State v. Cook, 179 N.J. 533, 562-63 (2004).]

      Here, defendant provides no meritorious support or reasoning for his

argument that evidence of police coercion is not a prerequisite to a finding of

involuntariness. To the contrary, the United States Supreme Court held that

"[a]bsent police conduct causally related to the confession, there is simply no

basis for concluding that any state actor has deprived a criminal defendant of

due process of law."      Connelly, 479 U.S. at 164.        The Connelly Court

acknowledged the uptick of interrogators' "more subtle forms of psychological

persuasion," and responded that "this fact does not justify a conclusion that a

defendant's mental condition, by itself and apart from its relation to official

coercion, should ever dispose of the inquiry into constitutional 'voluntariness.'"

Ibid. This court has adopted Connelly's holding. Smith, 307 N.J. Super. at 10

(quoting Connelly, 479 U.S. at 167 ("[C]oercive police activity is a necessary

predicate to the finding that a confession is not "voluntary" within the meaning

of the Due Process Clause of the Fourteenth Amendment.")).
                                       7                                 A-1159-17T4
      Defendant cites to United States v. Preston, 751 F.3d 1008 (9th Cir. 2014)

as a case where the court "examined the coerciveness of police interrogation

techniques through the lens of defendant's mental illness and ruled that his

statement was involuntary."     However, in Preston the Ninth Circuit found

multiple instances of improper interrogation techniques by the police, threats of

continued questioning, "multiple deceptions" by the officers, "false promises of

leniency and confidentiality," and other forms of police misconduct, leading the

court to conclude that defendant's "will was overborne and his statement

involuntary." Id. at 1023-28.

      Defendant's only assertion of police misconduct during the custodial

interrogation took place when the police began discussing the events that led up

to Byrd's killing, and the following colloquy occurred:

            A:    I came around there early, like around that time.

            Q:    It was around? Well, we got you on camera,
                  sometime I guess it was around, 9:22 . . . .

            A:    Yeah.

            Q:    Okay and then what . . . happens then?

            A:    Went around it.

            Q:    Went around where?

            A:    Woodlawn.

            Q:    Okay. You and him had words again?
                                      8                                 A-1159-17T4
           A:    Yeah, man.

           Q:    What did he say this time? Did he continue to
                 threaten you?

           A:    Yeah.

           Q:    And then what?

           A:    That's all that happened.

           Q:    We can't even though we know what happened.
                 We can't . . . put words into your mouth. We can't
                 tell you, we have to have you tell us even though
                 we know, you know. It's just the way it is.

           A:    That's all that happened.

           Q:    Did he threaten you today?

           A:    Yeah, he threatened me.

           [(emphasis added)]

     Defendant then continued to answer the officers' questions, and it was not

until more than twenty questions and twenty answers later that defendant made

inculpating statements. On appeal, defendant argues:

           The officer's explanation of 'the way it is' compelled
           [defendant] to continue with the interrogation. For a
           suspect of [defendant]'s cognitive limitations, the
           police representation that although they were aware of
           what happened they needed to hear it from [defendant],
           may have led him to believe that the police had all the
           inculpatory evidence, and the interrogation was simply
           an exercise in hearing it from his lips.

                                    9                                 A-1159-17T4
      By the time of the custodial interrogation, however, the police had already

tracked down defendant from the crime scene to the apartment where he was

apprehended. At the apartment, they recovered a gun in a box in the hallway

outside the apartment where defendant was found. Witness interviews identified

defendant as the shooter. Thus, the officers had enough evidence to know that

defendant knew more than his assertion – "[t]hat's all that happened" – and

therefore reasonably continued to question defendant. Moreover, by this time

defendant already acknowledged that he met with Byrd on the day of the

incident, and that Byrd threatened him. After defendant said "that's all that

happened" a second time, the officers asked more than twenty questions seeking

additional details about this encounter and defendant's history with Byrd. In

other words, the officers responded to "[t]hat's all that happened" with further

questions regarding information already given in the interrogation, rather than

repeating the same questions or pushing defendant further along in the story.

Ultimately, defendant's assertion he was compelled to continue with the

investigation is meritless, as it falls far short of the Court's standard that "'very

substantial' psychological pressures that overbear the suspect's will" must be

found in ruling that an involuntary confession occurred. Cook, 179 N.J. at 563

(quoting Galloway, 133 N.J. at 656).




                                       10                                   A-1159-17T4
      The record supports the trial judge's finding of "no evidence of police

coercion," and that no "threats or promises were made to [d]efendant at any point

during the interview." The judge noted the short length of the interrogation, and

that "[w]hile [defendant's] intellectual disability is certainly a factor to be

considered in the totality of the circumstances analysis, alone it is not

determinative," a rationale consistent with this court's finding in Smith.

      Furthermore, the record shows defendant's statements were not only

voluntary, but also reliable, as all material statements find corroboration in the

record. Defendant stated that he walked down Ocean Avenue and to his friend's

apartment – this was corroborated by the surveillance video and the fact that

defendant was arrested at the apartment. Defendant's statement of where he hid

the gun was corroborated by the fact the police found it at the stated location.

Defendant told the story multiple times during the interrogation, with no

inconsistencies. Defendant knew Byrd as "Hass," a shortened version of his first

name "Hassan." Defendant also discussed his custodial interrogation with Dr.

Cook, stating that his attorney told him that he should not have said anything;

however, there was no indication he recanted anything he said in the

interrogation.   We therefore hold that the trial court correctly ruled that

defendant's statements made at the custodial interrogation were voluntary, and

therefore are within the impeachment exception to the exclusionary rule.

                                      11                                 A-1159-17T4
                                         II

      Defendant next argues he received an excessive sentence, asserting the

trial court erred in failing to apply mitigating factor four, and in failing to apply

aggravating factors three, six, and nine "through the lens of defendant's

cognitive, mental, and psychiatric defects."

      Our Supreme Court has repeatedly held that sentencing determinations are

reviewed on appeal with a highly deferential standard. State v. Fuentes, 217

N.J. 57, 70 (2014). Specifically the Court has articulated:

             The appellate court must affirm the sentence unless (1)
             the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
             (1984) (alteration in original)).]

      When determining a sentencing term, a trial court must identify whether

any of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) or the

mitigating factors in N.J.S.A. 2C:44-1(b) apply, and then balance the applicable

factors. Id. at 72. The relevant factors must then be "qualitatively addressed

and assigned appropriate weight in a case-specific balancing process." Id. at 72-

73 (citing State v. Kruse, 105 N.J. 354, 363 (1987)). The court must also "state

                                       12                                   A-1159-17T4
reasons for imposing such sentence including . . . the factual basis supporting a

finding of particular aggravating or mitigating factors affecting sentence…." R.

3:21-4(g). It is especially important that the court provide a "clear explanation

'of the balancing of aggravating and mitigating factors with regard to imposition

of sentences and periods of parole ineligibility . . . .'" Fuentes, 217 N.J. at 73

(quoting State v. Pillot, 115 N.J. 558, 565-66 (1989)) (other citations omitted).

      In sentencing defendant, the court found significant the following

aggravating factors: 1) the risk of re-offense (factor three); 2) the extent of

defendant's prior criminal record and the severity of those offenses (factor six);

and 3) the need for deterrence (factor nine). See N.J.S.A. 2C:44-1(a)(3). At

defendant's request, the judge considered the mitigating factor of substantial

grounds tending to excuse or justify the defendant's conduct (factor four), but

declined to apply it. See N.J.S.A. 2C:44-1(b)(4).

      On appeal, defendant first contends that mitigating factor four "applies

due to [defendant's] documented intellectual and cognitive deficits."

Defendant's cases in support of his argument are clearly distinguishable: State

v. Hess, 207 N.J. 123, 129 (2011) concerned a defendant who "suffered from

Battered Women's Syndrome when she killed her husband"; State v. Nataluk,

316 N.J. Super. 336, 342-43 (App. Div. 1998) involved a defendant who

"previously suffered three severe head injuries," "frequently experienced

                                      13                                 A-1159-17T4
delusions and hallucinations," and whose expert doctor opined "defendant was

insane at the time of the incident"; and in State v. Nayee, 192 N.J. 475 (2007),

the Supreme Court summarily remanded the case "solely to the issue of the trial

court's refusal to consider the record before it in respect of defendant's mental

illness as a mitigating factor under N.J.S.A. 2C:44-1b(4) in arriving at its

sentence."

      In this case, however, the trial judge stated, "I certainly accept and

acknowledge that you have issues, mostly cognitive in nature."            He then

explained to defendant,

             But I have to weigh that against the facts and
             circumstances in this case. Whatever those cognitive
             deficiencies are, [it] certainly doesn’t convince me at
             all that it [a]ffected your ability to understand and
             appreciate what you did in October 2014, when you
             took that gun out and fired it multiple times at an
             unarmed man.

             The result was all but certain. There's nothing before
             me that in any [way] begins to excuse, minimize or
             explain your conduct. You are a seasoned veteran in
             the juvenile justice system by the time you took the gun
             out. You had been arrested twice as an adult for
             indictable charges. You knew what you were doing.
             You knew the results that were going to occur.

      The judge then acknowledged defendant and Byrd's relationship, and

defendant's clear intentions on the day of the incident, stating:

             Certainly . . . that again doesn't excuse this conduct. It
             doesn't minimize it. . . . You shot him five times. And
                                       14                                 A-1159-17T4
               then . . . . [y]ou ran and you hid, because you knew what
               you did was wrong. You tried to hide the gun so
               nobody would find it. . . . All indicating to me you well
               knew what you were doing when you did that.

               Whatever shortcomings you may have had in life, I
               don't believe [a]ffected your decision one bit that day.
               So I clearly don't find mitigating factors three or four
               apply here.

      The judge clearly considered defendant's cognitive disabilities under

mitigating factor four, and weighed it against the facts of the case and language

of the statute. We find no basis to disturb his decision not to apply mitigating

factor four.

      Second, defendant argues that "while aggravating factors three, six, and

nine are applicable, they must be considered through the lens of defendant's

cognitive, mental, and psychiatric deficits." Defendant fails to provide any legal

support for this assertion. Moreover, as explained above, the judge did consider

defendant's cognitive disabilities. He then provided ample reasons as to his

rationale for applying factors three, six, and nine.

      Finally, it should be noted that in his plea form, under "[s]pecify any

sentence the prosecutor has agreed to recommend," defendant wrote that he "will

plead guilty to [count one] as amended to . . . [aggravated] manslaughter[, and]

in exchange the state will seek [a twenty-five-year sentence] . . . ." Defendant




                                        15                                 A-1159-17T4
was ultimately sentenced to twenty-four years in prison subject to an eighty-five

percent parole ineligibility period.

      We conclude the sentencing court applied correct legal principles and its

findings regarding aggravating and mitigating factors are fully supported by the

record. See State v. Megargel, 143 N.J. 484, 493-94 (1996). We find no clear

error of judgment in the court's application of the facts to the law that would

shock our conscience. See id. at 393 (citation omitted). Accordingly, we find

no abuse of discretion in the imposition of an extended term or the particular

sentence imposed here. See State v. Pierce, 188 N.J. 155, 166 n.4 (2006)

(citation omitted); see also State v. Hudson, 209 N.J. 513, 526 (2012) (citation

omitted).

      Affirmed.




                                       16                               A-1159-17T4
