                                 NOT FOR PUBLICATION WITHOUT THE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-2207-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EVENS DUMAS, a/k/a
EVENA DUMAS,

     Defendant-Appellant.
_____________________________

                   Submitted April 20, 2020 – Decided June 24, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 15-04-0466.

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

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel; Catherine A. Foddai, Legal Assistant, on the
                   brief).

PER CURIAM
      Defendant Evens Dumas pleaded guilty to first-degree murder, N.J.S.A.

2C:11-3(a)(1), (2) (count eleven), 1 admitting he brought a handgun to a planned

robbery of players at a card game, and shot and killed one of the players "during

the process of trying to take the money." Defendant specifically reserved his

right to appeal the denial of his motion to suppress the statement he made to

Bergen County Prosecutor's Office detectives. On appeal he argues:

            [POINT ONE]

            [DEFENDANT'S] PURPORTED WAIVER OF HIS
            MIRANDA RIGHTS, AND HIS SUBSEQUENT
            CUSTODIAL    STATEMENTS,  WERE   NOT
            KNOWINGLY AND VOLUNTARILY GIVEN, AND
            THEREFORE SHOULD NOT HAVE BEEN
            ADMITTED AT TRIAL.

1
   Defendant, along with his three co-defendants, were indicted for second-
degree conspiracy to commit armed burglary, N.J.S.A. 2C:18-2(b)(2) and
N.J.S.A. 2C:5-2 (count one); second-degree conspiracy to commit armed
robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count two); second-degree
burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (count three); first-degree
robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts four, five, six, seven,
eight, nine and ten); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) and
N.J.S.A. 2C:2-6 (count eleven); first-degree felony murder (burglary), N.J.S.A.
2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count twelve); first-degree felony murder
(robbery), N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count thirteen); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and
N.J.S.A. 2C:2-6 (counts fourteen, fifteen, sixteen and seventeen); second-degree
possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) and N.J.S.A.
2C:2-6 (counts eighteen, nineteen, twenty and twenty-one), and third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b) and N.J.S.A. 2C:2-6 (count
twenty-two).
                                                                         A-2207-18T4
                                       2
We reject defendant's present arguments—some made for the first time on

appeal—and affirm substantially for the same reasons set forth by the motion

judge in his written decision based on his findings made after an evidentiary

hearing during which he heard testimony from one of the detectives who

interviewed defendant and watched and listened to the video recording of

defendant's statement.

      We defer to those factual findings "unless they were 'clearly mistaken' or

'so wide of the mark' that the interests of justice require[] appellate intervention."

State v. Elders, 192 N.J. 224, 245 (2007) (quoting N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 279 (2007)). That deferential standard is extended

to "factual findings based on a video recording or documentary evidence" to

ensure that New Jersey's trial courts remain "'the finder of the facts[.]'" State v.

S.S., 229 N.J. 360, 381 (2017) (quoting Fed. R. Civ. P. 52(a) advisory

committee's note to 1985 amendment).            We recognize that "[p]ermitting

appellate courts to substitute their factual findings for equally plausible trial

court findings is likely to 'undermine the legitimacy of the [trial] courts in the

eyes of litigants, multiply appeals by encouraging appellate retrial of some

factual issues, and needlessly reallocate judicial authority.'"        Id. at 380-81

(second alteration in original) (quoting Fed. R. Civ. P. 52(a) advisory

                                                                              A-2207-18T4
                                          3
committee's note to 1985 amendment).            Nevertheless, the motion judge's

application of his factual findings to the law is subject to plenary review. State

v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

       In his merits brief, defendant argues:

             the police steadfastly pressured the young [defendant]
             into signing a waiver and making an incriminating
             statement. While apparently he was fed, he was
             questioned intensely for four consecutive hours, then
             left in the interrogation room after eating a meal for
             another (unrecorded) three hours, and then interrogated
             for another hour without rereading his Miranda[2]
             rights.

       Defendant did not argue to the motion judge that he was pressured to sign

the Miranda waiver form. We, therefore, need not address that argument. State

v. Robinson, 200 N.J. 1, 19 (2009) ("[T]he points . . . developed in proceedings

before a trial court define the metes and bounds of appellate review."); see also

State v. Macon, 57 N.J. 325, 337-38 (1971) (an appellate court "may decline to

accept [arguments] first raised on appeal," or alternatively, review those

arguments for plain error).

       Moreover, defendant does not develop this unsupported argument in his

brief beyond that brief mention, thereby waiving that issue. N.J. Dep't of Envtl.



2
    Miranda v. Arizona, 384 U.S. 436, 477 (1966).
                                                                          A-2207-18T4
                                        4
Prot. v. Alloway Twp., 438 N.J. Super. 501, 506 n.2 (App. Div. 2015) (finding

that an issue raised in "a single sentence in [defendant's] brief" was waived

because defendant provided no supporting legal argument). And, nothing in the

record supports that defendant was pressured to sign the forms. Prior to reading

the forms to defendant, the detective merely confirmed he was obtaining the

water defendant requested and asked pedigree information. As such, there is no

merit in defendant's truncated argument.

      Nor do we see that defendant raised the additional argument to the motion

judge that police did not stop questioning and inquire if defendant invoked his

right to remain silent when he told the detectives he "had nothing to say."

Although we need not consider this argument that the motion judge did not have

an opportunity to consider, Robinson, 200 N.J. at 19-20, we nonetheless

determine defendant's skewed interpretation of the actual words he used is

meritless.

      As the judge found, the detective who testified at the suppression hearing

did most of the talking during the early part of the interview.      Defendant

repeatedly denied any knowledge of the shooting before the colloquy quoted by

defendant in support of his present argument:

             [DETECTIVE]: Come on, what you want to say?


                                                                        A-2207-18T4
                                       5
             [DEFENDANT]: There ain’t nothing to say.

             [DETECTIVE]: Cuz you don’t want to say anything?

             [DEFENDANT]: It’s not cuz I don’t want to say
             anything, there ain’t nothing to say. I got nothing to
             say.

             [(Emphasis added).]

      If defendant made "a request, 'however ambiguous,' to terminate

questioning[, remain silent] or to have counsel present[, the request ] must be

diligently honored." State v. Hartley, 103 N.J. 252, 263 (1986) (quoting State

v. Kennedy, 97 N.J. 278, 288 (1984)). "[A]ny words or conduct that reasonably

appear to be inconsistent with defendant's willingness to discuss his case with

the police are tantamount to an invocation" of the right to remain silent and a

desire to cease questioning. S.S., 229 N.J. at 382, 384 (quoting State v. Bey,

112 N.J. 123, 136 (1988)) (defendant invoked his right after stating: "No, that's

all I got to say. That's it"); State v. Johnson, 120 N.J. 263, 281 (1990) ("a suspect

who ha[d] 'nothing else to say' . . . asserted [his] right to remain silent" (citations

omitted) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987))).

      "If, however, 'following an equivocal indication of the desire to remain

silent,' the police are reasonably unsure whether the [defendant] was asserting

that right, they 'may ask questions designed to clarify whether the [defendant]


                                                                               A-2207-18T4
                                          6
intended to invoke his right to remain silent.'" Johnson, 120 N.J. at 283 (quoting

Christopher, 824 F.2d at 841-42). The police are entitled to resume questioning

if, in response to clarifying questions, the defendant indicates he is not invoking

his right; in which case, any confession obtained thereafter is admissible. See

ibid. ("[I]f the suspect makes clear that he is not invoking his Miranda rights

. . . substantive questioning [may] be resumed." (quoting State v. Wright,

97 N.J. 113, 120 n.4 (1984))).

      In context, it is obvious defendant was not invoking his right to remain

silent or seeking to terminate the interrogation, but rather, was continuing to

deny any involvement in the crimes. See State v. Diaz-Bridges, 208 N.J. 544,

575 (2011) (Albin, J., dissenting) (noting that when determining whether a

defendant invoked his right to remain silent, "[t]he words used by a suspect are

not to be viewed in a vacuum, but rather in 'the full context in which they were

spoken.'" (quoting State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005))).

Defendant’s remark that he had "nothing to say" was another denial of guilt.

Although defendant's remark did not amount to even an equivocal invocation,

the detective immediately asked for clarification.         Defendant’s response

demonstrated that he was not attempting to end the conversation, but rather, was

denying any involvement in the crimes. The detectives were entitled to continue


                                                                           A-2207-18T4
                                        7
questioning. As such, the subsequent confession was not obtained by virtue of

a Miranda violation. See Johnson, 120 N.J. at 283.

         We also see no mention to the motion judge of defendant's present

argument that the detectives' questioning was akin to the Reid method of

interrogation which produces false confessions, especially in juvenile offenders.

The detective was not questioned about the method during the evidentiary

hearing.       Defendant contends the detectives "refused to listen to [his]

protestations of innocence, promised [him] leniency if he was truthful . . .,

blamed the poker-players even as the crime was minimized, expressed false

sympathy" and overbore his will in order to force a confession is meritless.

Again, although not required, Robinson, 200 N.J. at 19-20, we will address the

issue.

         The Reid method of interrogation has been described by its critics as a

"nine-step sequence of social influence and techniques of persuasion [designed]

to systematically weaken suspects' resistance and to provide face-saving

rationales."     State ex rel. A.W., 212 N.J. 114, 125 n.3 (2012) (alteration in

original) (quoting Barry C. Feld, Criminology: Police Interrogation of Juveniles:

An Empirical Study of Policy and Practice, 97 J. Crim. L. & Criminology 219,

236-37 (2006)).       "[T]hese techniques include 'developing "techniques of


                                                                         A-2207-18T4
                                         8
neutralization" or psychological themes to justify or excuse the crime,'

'interrupting the suspect's attempts at denial,' and 'showing sympathy and urging

the suspect to tell the truth.'" Ibid. (quoting Feld, 97 J. Crim. L. & Criminology

at 236-37).

        We note none of the Reid techniques complained of have been found to

be unduly coercive even when applied to juvenile suspects, which defendant—

twenty years-old3 on May 6, 2014, the date of the interview—was not. See id.

at 137-38 (declining to ban the use of the Reid method of interrogation on

juvenile’s offenders, and finding that even though the technique was used, the

juvenile defendant’s confession was knowingly, intelligently and voluntarily

made and was not the result of an overborne will); see also State v. Reyes, 237

N.J. Super. 250, 258-60 (App. Div. 1989) (finding police did not overbear

defendant’s will by expressing sympathy and discussing forgiveness during the

interrogation), overruled on other grounds, State v. A.O., 397 N.J. Super. 8, 10

(App. Div. 2007).

        Contrary to defendant’s suggestion, the detectives did not make any

promises of leniency; rather, they suggested that members "up the chain" of the




3
    The presentence report lists defendant's date of birth in March 1994.
                                                                            A-2207-18T4
                                         9
criminal justice system liked to see cooperation. As the detective explained to

defendant:

             We don’t stop after I talk to you. Or the investigation
             doesn’t stop. It moves forward. And it goes in front of
             . . . our bosses, it goes in front of the prosecutor,
             eventually it goes in front of a judge. So the case moves
             forward and we tell a story. And we tell a story based
             on the facts of the case, based on what we observed,
             based on people we talk to, based on a million different
             things. We put the case together and we tell a story.
             And a story has many, many different parts. And the
             stories gonna be told. Whether you sit here and talk to
             me or don’t talk to me, the stories gonna be told. But
             I’m telling you, with a hundred percent certainty that
             it’s a better story and it’s a better story for you and its
             helpful to you because it’s all about cooperation,
             especially in Bergen County, if you tell your part of the
             story. Anything, I went up there, I didn’t know what I
             was doing, I didn’t know where we’re going, things
             went bad, whatever. Whatever story you want to tell me
             but it’s a small little piece and it helps me explain it to
             my boss, that’s who I’m going to have to talk to after I
             leave here, and to their bosses and so on and so forth.
             It helps them get an explanation on how things went
             bad and . . . how things happened. Okay, because the
             story gets told regardless.
      The mere fact that the detective suggested that the story would "sound

better" if defendant gave his version of events was not the same as promising

him that he would receive leniency if he made a confession, see State v. Watford,

261 N.J. Super. 151, 163 (App. Div. 1992) (Haley, J., concurring) ("agent's

statement to defendant that it was in his best interest to cooperate was not a

                                                                           A-2207-18T4
                                        10
'promise'" (quoting Rachlin v. United States, 723 F.2d 1373, 1377-78 (8th Cir.

1983))), nor was such a suggestion "so manipulative or coercive [as to deprive

defendant] of his ability to make an unconstrained, autonomous decision to

confess," State v. Di Frisco, 118 N.J. 253, 257 (1990) (quoting Miller v. Fenton,

796 F.2d 598, 605 (3d. Cir. 1986)).

      Moreover, defendant did not admit to anything during the initial part of

the interview. That part commenced at 2:08 p.m. and lasted for two hours and

forty-four minutes, after which defendant was transported by the detectives to

the Bergen County Sheriff's Department of Criminal Investigation (BCI) for

processing and to take buccal swab samples from defendant pursuant to a court

order. They left BCI for the return trip at about 7:30 p.m., stopped for food, and

arrived at the Prosecutor's Office at about 8:00 p.m., and ate dinner toget her.

The detectives then left defendant in the interview room while they met with

supervisors and watched the co-defendant's interview.

      The judge credited the detective's testimony that defendant knocked

around midnight and indicated he wanted to talk about the incident. During the

next hour, defendant admitted his involvement in the murder. We agree with

the judge's assessment that "[i]t is apparent that sitting in the interview room




                                                                          A-2207-18T4
                                       11
alone for more than three hours caused [defendant] to reflect and decide to make

the admissions, which are video-recorded, commencing at 12:03 [a.m.]."

      Thus, despite the argument that the detectives' methods elicited a false

confession from the youthful defendant, he did not implicate himself during the

initial questioning from 2:08 p.m. until 4:52 p.m. Defendant initiated the second

part of the interview and admitted to the murder. We note at the commencement

of the second part of the interview, the detective and defendant discussed the

Miranda warnings the detective read earlier:

            [DETECTIVE]: Alright, [defendant], we're going back
            on the record. Okay, uh, earlier today when I spoke
            with you, I read you your Miranda [r]ights, okay. You
            understand that your . . . Miranda [r]ights are still in
            effect and that you can . . . at any time stop talking to
            us, okay. And initiate your right to stop talking. You
            know that your Miranda [r]ights are still in effect,
            correct?

            [DEFENDANT]: Yeah.

            [DETECTIVE]: Okay, and you know you can stop
            talking to us at any time or – and request an attorney at
            any time. You understand that, right?

            [DEFENDANT]: Correct.

Defendant does not argue the detective was required to re-administer full

Miranda warnings. See State v. Milledge, 386 N.J. Super. 233, 245 (App. Div.

2006) (holding a "re-acknowledgement without a complete re-read of

                                                                         A-2207-18T4
                                      12
defendant's Miranda rights" sufficed where defendant did not assert the right to

remain silent).

      We do not discern any merit to defendant's argument that he was not tested

for drugs before the interview despite advising the detectives he was shot on

March 23 and still had a stitch that had to be removed; defendant was never

asked if he was taking any controlled dangerous substances. Despite defendant's

claim he was taking Percocet for pain relief, defendant's engagement with the

detectives does not reveal any level of intoxication or influence from any

substance. Defendant was able to fully and coherently answer each question

posed to him. The detective testified that, based on his twenty-one years in law

enforcement, defendant’s appearance, speech, eyes and demeanor suggested that

he was not under the influence of any drugs during the questioning. Even if

defendant was under the influence at the time of the questioning, "[a] confession

made by a person while under the influence of drugs is not per se involuntary."

State v. Wade, 40 N.J. 27, 35 (1963). As we held in State v. Warmbrun, 277

N.J. Super. 51, 64 (App. Div. 1994), where the defendant was "capable of

communicating[,] . . . was responsive in answering questions[,] and could

answer correctly questions such as his name, age, etc.[,]" his statement was




                                                                         A-2207-18T4
                                      13
properly admitted. Moreover, defendant twice said he understood his Miranda

rights.

      The question of voluntariness requires "the trial court [to] review[] 'the

totality of the circumstances surrounding the custodial interrogation,'" State v.

Tillery, 238 N.J. 293, 316 (2019) (quoting State v. A.M., 237 N.J. 384, 398

(2019)), and decide whether defendant’s decision to waive his rights resulted

from an impermissibly overborne will, State v. Burris, 145 N.J. 509, 536 (1996).

Our Supreme Court has held:

            Every case must turn on its particular facts. In
            determining the issue of voluntariness . . . a court
            should assess the . . . characteristics of the suspect and
            the details of the interrogation.           Some of the
            relevant factors include 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. A
            suspect's previous encounters with the law has been
            mentioned as an additional relevant factor.

            [State v. Miller, 76 N.J. 392, 402 (1978) (citation
            omitted).]

      The motion judge found "no evidence . . . that [defendant] was 'threatened,

tricked or cajoled' into a waiver of his rights or that his will was overborne."

The judge concluded the detective's "technique, attempting to gain [defendant's]

trust and urging him to cooperate with law enforcement, was well within

                                                                         A-2207-18T4
                                       14
acceptable bounds of interrogation and was not 'so manipulative or coercive [to

deprive defendant] of his ability to make an unconstrained, autonomous decision

to confess . . . .'" (Second alteration in original) (citations omitted). The judge

found the detective's "tone of voice and frustration did not rise to the level of

physical or psychological threats to render the confession involuntary." The

judge also determined the detective's persistence that defendant was untruthful

was not overbearing. See State v. Cabrera, 387 N.J. Super. 81, 103 (App. Div.

2006).

      We see no reason to disagree with the judge's supported conclusions.

Defendant was a twenty-year-old man at the time of the interrogation with an

eleventh-grade education. He had a substantial criminal history and was familiar

with the criminal justice system: as a juvenile he was charged with robbery,

N.J.S.A. 2C:15-1(a)(3), possession of a weapon for unlawful purposes, N.J.S.A.

2C:39-4(a), and conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1(a)(3); as an adult, he was charged with possession of a controlled

dangerous substance, N.J.S.A. 2C:35-10(a), possession of a controlled

dangerous substance with intent to distribute, N.J.S.A 2C:35-5(a)(1), possession

of a controlled dangerous substance with intent to distribute on or near school




                                                                           A-2207-18T4
                                       15
property, N.J.S.A. 2C:35-7, unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b), and numerous municipal offenses.

      At the outset of the interrogation, defendant was read his rights and

indicated that he understood them, that "[n]o promises or threats have been

made" to him, and that he should not feel pressured to continue the interrogation

if he did not want to.    He repeated that he understood those rights at the

beginning of the second part of the interview.

      Defendant did not endure an unreasonably lengthy period of questioning,

mental or physical exhaustion, or threats of violence. As the motion judge

pointed out, defendant "was questioned for less than four hours, notwithstanding

being in custody for a twelve[-]hour period." The interview occurred during the

middle of the day: it "began at 2:08[p.m.] and continued until 4:52[p.m.]" There

were breaks in the questioning. Defendant was fed dinner at a reasonable hour

and was not forced to eat alone. Nothing in the record suggests he was denied

a break or a request for food or water; or otherwise complained that he was too

tired to continue the questioning.

      Inasmuch as the State proved beyond a reasonable doubt that defendant

knowingly, intelligently, and voluntarily waived his Miranda rights, See State

v. Hreha, 217 N.J. 368, 383 (2014); State v. Nyhammer, 197 N.J. 383, 400-01


                                                                         A-2207-18T4
                                      16
(2009), and defendant's statement was voluntary and not the product of an

overborne will, State v. Galloway, 133 N.J. 631, 654 (1993), defendant's

suppression motion was properly denied. We discern no error, much less plain

error, in the motion judge's decision. R. 2:10-2; Macon, 57 N.J. at 337-38.

      To the extent not addressed, defendant's remaining arguments are without

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

      Affirmed.




                                                                        A-2207-18T4
                                      17
