                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-1719-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL D. OLIVER, a/k/a
MICHAEL DAY, and
WAYNE FRENCH,

     Defendant-Appellant.
____________________________________

                    Argued October 23, 2018 – Decided November 2, 2018

                    Before Judges Fisher and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 15-05-0277.

                    Marcia H. Blum, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Marcia H. Blum, of counsel
                    and on the briefs).

                    Adam D. Klein, Deputy Attorney General, argued the
                    cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Adam D. Klein, of counsel and on
                    the brief).
PER CURIAM

      Defendant Michael D. Oliver was originally indicted in Salem County for

murder, N.J.S.A. 2C:11-3; aggravated manslaughter, N.J.S.A. 2C:11-4(a);

endangering the welfare of children, N.J.S.A. 2C:24-4(a); and aggravated

assault, N.J.S.A. 2C:12-1(b)(1) by a grand jury. He entered a conditional guilty

plea to first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-

4(a)(2). Pursuant to the plea agreement, he was sentenced to a twenty-year term

of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. Judge Benjamin C. Telsey also imposed a five-year period of post-release

parole supervision, requisite fines, and penalties. Defendant raises the following

points for our consideration on appeal:

            POINT I

            THE INDICTMENT FOR SERIOUS[]BODILY[]
            INJURY MURDER MUST BE DISMISSED
            BECAUSE: 1) THE PROSECUTOR GAVE THE
            JURY AN INCORRECT DEFINITION OF THE
            ESSENTIAL ELEMENT OF SERIOUS BODILY
            INJURY AND 2) THE STATE FAILED TO PRESENT
            PRIMA FACIE EVIDENCE THAT DEFENDANT
            COMMITTED         SERIOUS[]BODILY[]INJURY
            MURDER.

            1. Incorrect definition of serious bodily injury murder.

            2. Failure to present prima facie evidence of SBI
            murder.

                                                                          A-1719-16T4
                                          2
            POINT II

            DEFENDANT'S    STATEMENT   MUST   BE
            SUPPRESSED BECAUSE THE MIRANDA FORM
            THE POLICE USED TO ADVISE HIM OF HIS
            RIGHTS WAS INACCURATE AND MISLEADING
            AND PRECLUDED A KNOWING, VOLUNTARY,
            AND    INTELLIGENT  WAIVER   OF   HIS
            CONSTITUTIONAL RIGHTS.

      We have considered these arguments in light of the record and applicable

legal standards and affirm.

                                        I.

      The following facts are derived from the record.            Defendant was

babysitting the victim, four-year old L.P.,1 and three other children, in December

2014 in Penns Grove. After finding L.P. unresponsive and being unable to

contact her mother, defendant called 911 for an ambulance. The dispatcher

asked him several questions, including, "how old is she?", "what's going on?",

and "what happened?" Defendant responded that he did not have "time to

answer all of that" and was instructed by the dispatcher to perform

cardiopulmonary resuscitation (CPR), which he attempted until the paramedics

and police arrived. After L.P. was transported to the hospital, Detective James


1
  We use initials to protect the identities of the victim and juveniles involved in
these proceedings. R. 1:38-3(d).
                                                                           A-1719-16T4
                                        3
Gillespie of the Salem County Prosecutor's Office went to the apartment and

questioned defendant about what happened. Gillespie recorded the conversation

on his cell phone because defendant was "talking to me very fast, providing . . .

a lot of information at once."     Miranda2 warnings were not given because

Gillespie did not consider defendant a suspect at that point in time since

information was being gathered. According to defendant, while he and two of

the children were cleaning the apartment, L.P. was in a bedroom with M.D. He

heard a "thump," but "didn't pay no mind" because he thought they were playing.

When he entered the room, he saw L.P. lying on the floor and told her to "stop

playing" and "get the fuck up" or he would make her "assume the position, or

put [her] on the floor." He picked up her limp body and carried her to the living

room. Defendant claimed he was "trying to get this little fucker to breathe" and

"thought she was dead."

       At 11:00 p.m. that evening, Gillespie drove defendant to the police station

where he was read his Miranda rights and signed a Miranda card advising him

of his rights even though he was not then considered a suspect. Prior to the

interview, the child died. Defendant provided a more detailed account to the

detectives about what happened that day and he described his relationship with


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-1719-16T4
                                        4
the children. He described how he "normally just beat up the kids" in order to

play with them. On the day in question, the children were jumping on the bed

and "got a little too rowdy" so he put them to bed. He stated L.P., who was

"spoiled" and a "bully", was on the floor, and he thought she was "playing

possum." Her eyes were open. He shouted, "All right, stop fucking playing.

Get up, it's time for bed."

      Without provocation, defendant claimed during this interview that he was

anxious about a prior incident that occurred in Camden years ago with his former

girlfriend as to who was going to babysit a child. Because he thought "probation

or something like that" would be imposed, defendant said, "Fuck it, I did it," and

he served five years in prison for that crime. Before ending the interview,

defendant asked Gillespie about L.P. but was not informed of her demise.

      The same day, Gillespie spoke to one of the children, five-year old N.D.,

who described how defendant punished the children when they misbehaved.

With regard to L.P., defendant would make her "be on the floor and put her feet

up" six inches from the ground. N.D. further said L.P. "was bad" because she

kicked defendant. When she was unable to maintain her feet six inches above

the floor, defendant punched her nine times in her lower abdomen while she

cried, as re-enacted by N.D., who also stated that L.P. cried throughout.


                                                                            A-1719-16T4
                                        5
      The medical examiner, Dr. Gerald Feigin, conducted an autopsy of L.P.

the next day and determined that she died as a result of "blunt force trauma to

the abdomen," and that the manner of her death was homicide. That same day,

defendant was arrested, handcuffed, and transported to the police station.

Before reading defendant his Miranda rights, Gillespie told him, "Now, same

thing as yesterday; . . . before I talk to you about anything, I've just got to go

through this here with you. I just have to read you your rights; all right?" His

Miranda rights were explained to him and defendant responded "yes" when

asked if he understood them. Gillespie and Sergeant Elliot Hernandez asked

defendant to recount the previous night's events. He did so and claimed he did

not punch or "play fight" with the children that night. He did not deny being the

only adult present. After initially protesting, defendant also retold the story

about the previous child neglect arrest. L.P.'s autopsy results were shared with

defendant, who could not offer an explanation as to the bruises found on her

back. His response was, "I'm telling you, I don't know nothing about no bruises,"

and admitted that a bruise occurs by "somebody hitting you." Defendant became

agitated and said, "it's going to go back to me going to jail," and requested

counsel. He was charged with murder.




                                                                          A-1719-16T4
                                        6
      At the plea hearing, defendant admitted that he acted recklessly and with

an extreme indifference to the value of human life.

                                       II.

      We review arguments raised for the first time on appeal under a plain error

standard. Under this standard, we disregard an error unless it was "clearly

capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80,

95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). One of the reasons that we

deal differently with claims of error, which could have but were not raised at

trial, from those timely challenged is because "[i]t may be fair to infer from the

failure to object below that in the context of the trial the error was actually of

no moment." Macon, 57 N.J. at 333.

      In preserving his right to appeal the denial of the motion to dismiss the

indictment, defendant contends that the State did not present evidence of a

knowing or purposeful state of mind to the grand jury. Now on appeal, for the

first time, he argues "serious bodily injury" was not correctly defined by the

State to the grand jury, and that the "purposely and knowingly" element of

murder was based upon N.D.'s statement to the police, which is insufficient.

       Subject to certain exceptions not applicable here, criminal homicide

constitutes murder when the defendant "purposely" or "knowingly" causes the


                                                                          A-1719-16T4
                                        7
death of the victim or commits serious bodily injury that results in death. See

N.J.S.A. 2C:11-3(a)(1) (regarding purposeful conduct), -3(a)(2) (regarding

knowing conduct); State v. Cruz, 163 N.J. 403, 417-18 (2000); see also State v.

Galicia, 210 N.J. 364, 377-78 (2012).           He essentially maintains that no

reasonable fact-finder could have concluded that he possessed the mens rea to

commit murder. We disagree.

      The grand jury was read relevant portions of the indictment, as well as the

definitions for knowing or purposeful serious bodily injury murder. Prior to

eliciting testimony, the assistant prosecutor read the following relevant portion

of the indictment to the grand jury:

            The Grand Jurors of the State of New Jersey for the
            County of Salem, upon their oaths, indicate that on
            December 3, 2014, in Penns Grove, Salem County,
            [defendant] purposely or knowingly did inflict serious
            bodily injury upon [the child victim] which resulted in
            the death of [the child victim], contrary to 2C:11-
            3(a)(2).

      The elements of knowing or purposeful serious bodily injury murder were

read to the grand jurors as follows:

            Now I will read for you the mental intents that are found
            in 2C:2-2, which are referenced in 2C:11-3. Purposely,
            let me just make a notation here, is defined, "a person
            acts purposely with respect to the nature of his conduct
            or a result thereof, it is – if it is his conscious objection
            or object to engage in conduct of that nature, or to cause

                                                                            A-1719-16T4
                                         8
            such a result. A person acts purposely with respect to
            attendant circumstances if he is aware of the existence
            of such circumstances, or he believes or hopes that they
            exist.    With purpose, designed, with design or
            equivalent terms have the same meaning.["]

            Knowingly, a person acts knowingly with respect to the
            nature of his conduct or the attendant circumstances if
            he is aware that his conduct is of that nature, or that
            such circumstances exist or he is aware of a high
            probability of their existence. A person acts knowingly
            with respect to a result of his conduct if he is aware that
            it is practically certain that his conduct will cause such
            a result, knowing, with knowledge or equivalent terms
            have the same meaning.

      The assistant prosecutor also defined serious bodily injury for the grand

jury by stating, "[s]erious bodily injury is defined under 2C:11-1[, as] '[b]odily

injury which creates a substantial risk of death or which causes serious

permanent disfigurement, or protracted loss or impairment of the function of any

bodily member or organ.'"

      The grand jury heard testimony from Gillespie that defendant was the only

adult home with four children; he made L.P. lay down on the floor with her

ankles raised and punched her "hard" nine times in her lower abdomen; and that

the autopsy report concluded that the cause of death was blunt force abdominal

trauma. Gillespie further testified that the manner of death was homicide.




                                                                          A-1719-16T4
                                        9
      We are mindful of the State's persuasive argument here that defendant's

serious bodily injury contention was not encompassed by his conditional guilty

plea. Nonetheless, we still reject defendant's argument. Our standard of review

in examining the trial court's denial of a motion to dismiss the indictment is

limited, and will be reversed only for an abuse of discretion. State v. Saavedra,

222 N.J. 39, 55-56 (2015). An indictment should be dismissed "only on the

clearest and plainest ground; and only when the indictment is manifestly

deficient or palpably defective." State v. Twiggs, 233 N.J. 513, 531-32 (2018).

Grand jury proceedings are presumed valid, and defendant has the burden to

prove prosecutorial error. State v. Francis, 191 N.J. 571, 586 (2007); see also

State v. Triestman, 416 N.J. Super. 195, 204 (App. Div. 2017). The grand jury

is simply an accusatory body and determines probable cause, or a prima facie

case. State v. Hogan, 144 N.J. 216, 235 (1996).

      In denying the motion to dismiss the indictment, Judge Telsey aptly found:

            That is a fact issue; and, the [c]ourt has to at least look
            at what was presented to the jury, the [g]rand [j]ury that
            is, to see if there's at least a prima facie showing of facts
            for the jury to draw that conclusion.

            When I look at the allegations that were presented to
            the jury in this particular case, the defendant gave a
            statement or reaction to the victim being found
            unresponsive on the bedroom floor, was, "I'm going to


                                                                            A-1719-16T4
                                        10
fuck you up, or make you assume the position, or put
you on the floor. Shit like that."

The State provided the defendant's reaction to police
questioning, where the defendant indicated that he
agreed with detectives that the victim was [], "spoiled
and a brat."

Further, N.A. indicated that the defendant would punish
the children by - - he'd babysit, by making them lay on
the floor, with their feet up in the air. When the child's
feet fell to the ground, the defendant would punch the
child in the stomach, hard sometimes, making the
children cry.

Based upon the evidence alone, there appears to be
prima facie evidence as to the mental state of the
defendant; and, it would be up for the [g]rand [j]ury in
this particular case, to make a determination as to
whether or not the State has met its - - has established
probable cause of knowing or purposeful.

And [the jury] will be instructed . . . at the time of trial,
[and] they'll have to decide, beyond a reasonable doubt,
where[]as the [g]rand [j]ury only has to decide . . .
whether or not there is probable cause, . . . and, I'm
reading from the charge[:]

"The nature of the purpose or knowledge with which
the defendant acted toward the victim, is a question of
fact for you, the jury, to decide. Purpose and
knowledge are conditions of the mind, which cannot be
seen, and can only be determined by inferences from
conduct, words, or acts.["]

"It is not necessary for the State to produce a witness,
or witnesses, who could testify that the defendant
stated, for example, that his purpose was to cause death

                                                                A-1719-16T4
                            11
      or serious bodily injury resulting in death, or that he
      knew that his conduct would cause death or serious
      bodily injury resulting in death.["]

      "It is within your power to find that proof of purpose or
      knowledge has been furnished," here, beyond a
      reasonable doubt, which doesn't apply to the [g]rand
      [jury]. "By inferences which may arise from the nature
      of the acts and the surrounding circumstances.["]

      "Such things, as the place where the acts occurred, the
      weapon used, if any, the location, number and nature of
      wounds inflicted; and, all that was done or said by the
      defendant pr[e]ceeding, connected with, and
      immediately succeeding the events leading to the death
      of the victim, are among the circumstances to be
      considered."

      And, those facts, that the jury charge references are just
      those facts that were presented to the [g]rand [j]ury, so
      the [c]ourt - - so the [g]rand [j]ury had the information
      for it to make the necessary determination as to whether
      or not the State met its initial burden for the [g]rand
      [jury] proceedings, as to whether purposeful or
      knowing conduct was that on the part of the defendant.

      So, based upon the facts that were presented to the
      [g]rand [j]ury, the [c]ourt is satisfied that the [g]rand
      [j]ury had sufficient information to draw the
      conclusion, that the State was able to meet its burden of
      proof as to the mens [rea] of the defendant in this
      particular case.

We find no reversible error here.




                                                                   A-1719-16T4
                                 12
                                       III.

      Defendant now challenges the constitutionality of the Carneys Point

police department's Miranda warning form on two grounds: (1) the form does

not ask if defendant "stand[s] on his right to remain silent, and presumes he

abandoned it," and (2) the form asks if defendant acknowledges his rights but

not if he waives his rights, arguing that the acknowledgment constitutes a

waiver.   Even if the warnings were properly given, defendant argues his

December 4, 2014 statement should be suppressed. We disagree.

      "The defendant may waive effectuation of these rights, provided the

waiver is made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at

444-45; see also State v. Messino, 378 N.J. Super. 559, 576 (App. Div. 2005).

The burden is on the State to prove defendant was informed of these rights and

"knowingly, voluntarily, and intelligently waived [these] right[s]" beyond a

reasonable doubt. State v. Nyhammer, 197 N.J. 383, 400-01 (2009); see also

State v. Presha, 163 N.J. 304, 313 (2000).

      Here, Carneys Point Miranda form read as follows:

            You have the right to remain silent and refuse to answer
            any questions. Anything you say may be used against
            you in a court of law. You have the right to consult
            with an attorney at any time and have him or her present
            before or during questioning. If you cannot afford an
            attorney, one will be provided, if you so desire, prior to

                                                                         A-1719-16T4
                                       13
            any questioning. And the decision to waive your rights
            is not final. You may withdraw your waiver whenever
            you wish, either before or during questioning.

      Gillespie read the waiver line as "[a]nd the decision to waive your rights

is not final." Defendant asserts that the form presumes he abandoned his rights.

However, when read as a whole, the inference is that defendant could have

withdrawn the waiver at any time. There is nothing misleading. Gillespie and

Hernandez video-recorded defendant's statement, and Gillespie read defendant

his rights a second time. At the suppression hearing, defendant's counsel argued

that his motion should be granted because defendant did not comprehend wh at

the word "waive" meant: he was under the influence of marijuana; was stressed

out; and had cognitive limitations. The State is only obligated to inform a

defendant of Miranda warnings and show that he or she understood those rights.

Nyhammer, 197 N.J. at 400. A "ritualistic formula" is unnecessary. Messino,

378 N.J. Super. at 577.

      Under the totality of the circumstances, we find no reversible error here.

At the hearing, Judge Telsey observed defendant's demeanor and listened to his

recorded statement.       The judge found that "at the commencement of the

statement obtained, the officer read to him his rights [. . .] and defendant




                                                                        A-1719-16T4
                                      14
acknowledged, 'yes,' when he said he was willing to waive those rights, and

signed the card, indicating that he acknowledge[d] receiving those rights."

      With respect to his alleged impairment, Judge Telsey found he "never saw

. . . where a question was asked where the answer was unresponsive, which

would lead [him] to believe [defendant] was under the influence, that he wasn't

understanding what was going on, or that he didn't even understand the words

that were going on."

      We agree that defendant voluntarily waived his Miranda rights and find

no reversible error as to denial of the suppression motion. We are also satisfied

that there was sufficient basis to support the trial court's exercise of discretion

and we find no basis to vacate defendant's plea.

      To the extent we have not addressed defendant's remaining arguments, we

find them without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Affirmed.




                                                                           A-1719-16T4
                                       15
