                                 NOT FOR PUBLICATION WITHOUT THE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-5141-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ASA T. JONES, a/k/a ASA FERGUSON,
and ASA T. FERGUSON

     Defendant-Appellant.
______________________________________

                    Submitted September 18, 2018 – Decided October 2, 2018

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 14-05-
                    0503.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sarah E. Elsasser, Deputy Attorney
                    General, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

       Defendant appeals from his conviction for murder, N.J.S.A. 2C:11-

3(a)(1)(2), and certain persons not to have weapons, N.J.S.A. 2C:39-7(a).

Defendant contends his statement to the police should have been suppressed

because he was tricked and coerced into waiving his Miranda1 rights.            In

addition, defendant argues his conviction should be reversed because the

prosecutor misstated the definition of recklessness to the jury. We affirm.

       Prior to trial, defendant moved to suppress his statement to the police,

arguing it was not voluntary and intelligent. The judge conducted an evidentiary

hearing on defendant's motion. The suppression hearing included a videotaped

recording of defendant's interactions with the police and the testimony of one of

the interviewing detectives.    The recording consisted of defendant's first

interview, which ended when he invoked his right to remain silent; his

subsequent communications with the officers who came into the interview room

to photograph defendant's injuries and remove defendant's clothing; and the

second interview, during which defendant waived his Miranda rights. Detective

Gregory Malesich, who conducted both interviews, testified during the

suppression hearing.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-5141-16T1
                                       2
      Detective Malesich testified as follows. Around 10:00 p.m. on November

17, 2013, the police received a telephone call that an individual had been stabbed

and was lying in the street. Detective Malesich arrived at the scene around 11:30

p.m. By that time, the victim, who had been transported to the hospital, was

pronounced dead. Defendant was arrested and taken to the police station to be

interviewed.

      At 2:50 a.m., after interviewing other eyewitnesses to the evening's

events, Detective Malesich and another detective questioned defendant. The

detectives asked defendant a number of introductory questions, informed him

that they wanted to question him "about what happened," but needed to review

the Miranda form with defendant before asking additional questions.               In

response, defendant asked about the charges and bail. Detective Malesich told

defendant he was not charged with anything. Defendant stated, "[w]ell I don't

want to talk about nothing." Defendant confirmed he did not wish to speak with

the police without some understanding of the charges against him. As a result

of defendant's statement, two minutes after the interview began, the detectives

ended the questioning and left the room.

      Soon thereafter, as captured on the videotape, two different officers

entered the room to take pictures of defendant's injuries and collect his clothing.


                                                                           A-5141-16T1
                                        3
Defendant asked these officers to explain the charges against him. The officers

responded they were "just taking pictures" and were not permitted to speak with

defendant because he invoked his right to remain silent. Defendant continued

to protest that no one was telling him anything regarding the charges against

him.

       Detective Malesich and two other detectives returned to the interview

room. The detectives told defendant they had to review his Miranda rights and

have defendant understand those rights before they could speak with him.

Defendant then authorized the detectives to review his Miranda rights "so I can

know what's going on." The detectives confirmed that defendant asked them to

return to the interview room to review the Miranda rights and speak with the

police. Detective Malesich then read defendant his rights and presented a

Miranda waiver form for defendant's signature.

       Once defendant signed the form and waived his Miranda rights, the

detectives asked defendant what happened. Defendant stated he was involved

in a fight with the victim but did not admit to stabbing him. During the second

interview, the detectives informed defendant that the victim had died.

       After hearing the detective's testimony and reviewing the videotape of

defendant's interviews, the judge determined defendant's waiver of his rights


                                                                         A-5141-16T1
                                       4
was voluntary and intelligent. The judge concluded the detectives ended the

first interview when defendant said he did not want to talk. However, defendant

subsequently indicated he wanted to speak with the detectives. Based on the

evidence, the judge determined defendant was in custody, "clearly the target of

the investigation," and opined that even if the detectives did not know "the exact

charges," they knew "[defendant] was going to be charged with some crime

associated with the death of [the victim]." While the judge acknowledged

"[d]efendant wanted to engage in conversation [with the detectives] to discover

what his criminal charges were," he determined defendant's waiver of his

Miranda rights was knowing and voluntary. Thus, the judge denied defendant's

motion to suppress his statements to the detectives.

      After denial of the suppression motion, the matter proceeded to trial. At

trial, several eyewitnesses testified to seeing defendant and the victim fighting

in the street. When the fight ended, the witnesses saw each man walk in the

opposite direction. Defendant walked to his apartment, but returned a few

minutes later according to witnesses. After defendant returned, one witness saw

him stab the victim several times. Another eyewitness explained she saw what

appeared to be defendant punching the victim below his waist. This witness saw

"a little, tiny knife" on the street and the witness gave the knife to defendant.


                                                                          A-5141-16T1
                                        5
Defendant then tossed the knife into a parking lot across the street, but held a

different blood-covered knife in his hand. The eyewitness testified defendant

returned to his apartment building.

      Three police officers who responded to the scene testified during the trial.

The officers described finding the victim on the sidewalk, propped up against a

telephone pole. The victim had three puncture wounds, one to his chest and two

in his thigh. The victim was transported to the hospital and pronounced dead

upon arrival.

      After speaking with people at the scene, Detective Jules Maiorano called

defendant on his cellphone and told him to turn himself in for questioning.

Defendant stated he was "in Glassboro and that he needed a ride" to the police

station. Shortly after this discussion with defendant, the officers received a call

that there was a man running through backyards in the area. The officers found

defendant running through a backyard, and ordered him to stop. Defendant

stopped, and was placed under arrest.

      The police obtained video surveillance from defendant's apartment

building and a nearby building, which captured images of the incident. The

police also collected a serrated knife blade across the street from defendant's

apartment building and blood samples from the street. In addition, the police


                                                                           A-5141-16T1
                                        6
seized a number of items from defendant's apartment, including a knife from a

drying rack in the kitchen, a shirt next to the kitchen sink, and drain traps from

the kitchen and bathroom sinks. While defendant was at the police station, the

police removed defendant's clothing; photographed cuts and bruises on

defendant's hands, back, and face; and took a buccal swab. The State's forensic

laboratory found the victim's DNA on defendant's clothing and identified DNA

from both men on a shirt and a knife.

      The victim had bruises on his left forearm, scrapes on his elbows, and

three stab wounds. One stab wound penetrated the inner thigh six-and-one-half

inches and cut the femoral artery and vein, "causing massive and rapid

bleeding."   A second stab wound, about two inches below the first, "[s]truck

soft tissues only." A third stab wound, which was "relatively superficial," was

in the area of the victim's rib cage. The medical examiner identified the wound

to the victim's inner thigh as life-threatening, and concluded his death was a

homicide.

      During the jury trial, the State played surveillance recordings from

cameras mounted on or near defendant's apartment building. The State also

played the recording of defendant's first and second interviews, including the




                                                                          A-5141-16T1
                                        7
exchanges between defendant and the police that transpired between the two

interrogations. The jury convicted defendant on all counts.

      On appeal, defendant, through his counsel, presents the following

arguments:

POINT I

             DEFENDANT'S STATEMENT SHOULD       HAVE
             BEEN SUPPRESSED BECAUSE THE POLICE
             TRICKED AND COERCED HIM INTO WAIVING
             HIS RIGHTS, AFTER HE HAD INVOKED THEM,
             BY TELLING HIM THEY COULD NOT ANSWER
             HIS INQUIRIES ABOUT HIS STATUS UNLESS HE
             WAIVED HIS RIGHTS.
POINT II

             THE     MURDER  CONVICTION  MUST   BE
             REVERSED       BECAUSE     DEFENDANT
             MAINTAINED THAT HE ACTED RECKLESSLY,
             AND THE PROSECUTOR MISSTATED THE
             DEFINITION OF RECKLESSNESS (Not raised
             below).

      In his pro se supplemental brief, defendant argues the following points:

POINT I

             THE STATEMENT ALLEGEDLY MADE BY
             DEFENDANT SHOULD HAVE BEEN SUPPRESED
             BECAUSE THE PROCEDURES UTILIZED BY LAW
             ENFORCEMENT OFFICERS, DURING THE
             CUSTODIAL INTERROGATION OF MR. JONES,
             FAILED TO COMPLY WITH MIRANDA V.
             ARIZONA, VIOLATING THE FIFTH, AND THE
             FOURTEENTH AMENDMENT, OF THE UNITED

                                                                        A-5141-16T1
                                       8
            STATES CONSTITUTION, AND ARTICLE I,
            PARAGRAPH 10 OF THE NEW JERSEY
            CONSTITUTION.

            A. THE TRIAL COURT FAILED TO PROPERLY
            APPLIED   THE    "TOTALITY   OF   THE
            CIRCUMSTANCES" TEST IN ADMITTING THE
            DEFENDANT'S STATEMENT.

            B. THE DEFENDANT'S WAIVER OF HIS RIGHT
            AGAINST SELF-INCRIMINATION WAS NOT
            KNOWING,         VOLUNTARY         AND
            INTELLIGENT[LY] MADE.
POINT II

            MISCONDUCT BY THE PROSECUTOR DEPRIVED
            THE DEFENDANT OF HIS CONSTITUTIONAL
            RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
            U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART.
            I, ¶¶ 1, 10.
POINT III

            THE TRIAL COURT ERRED IN NOT GRANTING
            DEFENDANT'S MOTION FOR A NEW TRIAL ON
            THE GROUNDS THAT THE VERDICT WAS
            AGAINST THE WIEGHT OF THE EVIDENCE.
POINT IV

            THE TRIAL COURT ERRED IN NOT DOING A
            FOLLOW UP COLLOLOQUY IN ADVISING
            DEFENDANT OF HIS RIGHT TO TESTIFY.
POINT V

            THE CUMULATIVE EFFECT OF THE ERRORS
            COMPLAINED OF RENDERED THE TRIAL
            UNFAIR.



                                                           A-5141-16T1
                                 9
      We first address defendant's contention that the judge erred in admitting

his statements to the detectives because the State failed to prove beyond a

reasonable doubt that he knowingly, intelligently, and voluntarily waived his

Miranda rights.

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

protection of a defendant's constitutional rights" when assessing the propriety

of a trial judge's decision to admit a police-obtained statement. State v. Hreha,

217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)).

Nonetheless, we defer to the trial judge's credibility and factual findings because

of the judge's ability to see and hear the witnesses, and thereby obtain the

intangible but crucial feel of the case. State v. Maltese, 222 N.J. 525, 543

(2015). To warrant reversal, a defendant must show the admission of the

statement was error "capable of producing an unjust result." Ibid. On appeal

from a trial court's decision on a suppression motion, we defer to the trial judge's

findings so long as they are supported by sufficient credible evidence. State v.

S.S., 229 N.J. 360, 370 (2017). We should not reverse a trial court's findings of

fact based on its review of a recording of a custodial interrogation unless the

findings are clearly erroneous or mistaken. Ibid.




                                                                            A-5141-16T1
                                        10
      "A suspect's waiver of his [or her] Fifth Amendment right to silence is valid

only if made 'voluntarily, knowingly and intelligently.'" State v. Adams, 127 N.J.

438, 447 (1992) (quoting Miranda, 384 U.S. at 444). The State bears the burden of

establishing beyond a reasonable doubt that a confession is knowing and voluntary.

N.J.R.E. 104(c); State v. Nyhammer, 197 N.J. 383, 401 n.9 (2009).                 The

determination of the voluntariness of a custodial statement requires an assessment

of the totality of the circumstances surrounding the giving of the statement. State v.

Roach, 146 N.J. 208, 227 (1996).

      A Miranda waiver is invalid if police withhold the fact that an arrest

warrant or criminal complaint has been issued. State v. A.G.D., 178 N.J. 56, 68

(2002). However, police are not required to inform a person of their status as a

suspect. Nyhammer, 197 N.J. at 404-05 (finding a suspect knowingly and

voluntarily waived his rights after being told he was being questioned about

allegations against a third party and not told that the same allegations were made

against him). Failure to inform a person that he is a suspect is a factor in

determining whether a waiver of rights was knowing and voluntary. Id. at 405.

      In his motion to suppress the statements he made to the detectives,

defendant argues his waiver was not voluntary or intelligent because he was not

advised he was going to be charged with murder. After hearing the testimony


                                                                              A-5141-16T1
                                        11
and reviewing the videotaped recording of defendant's interviews, the judge

issued a twenty-one page written opinion denying defendant's motion to

suppress. The judge found defendant initiated the discussion with the detectives

the second time and properly waived his rights prior to any questions or

discussion about the investigation.     The judge noted defendant's lack of

knowledge or information about the charges was a factor in the totality of the

circumstances analysis, but did not automatically evidence the involuntary

nature of defendant's waiver of his rights. The judge determined it was clear

defendant was a suspect in the stabbing and "the State has established beyond a

reasonable [doubt] that there existed a knowing and voluntary waiver."

      There was sufficient evidence that defendant's statement to the detectives

was knowing, voluntary, and intelligent. The detectives honored defendant's

right to remain silent when they left the room after the first interview. When

defendant subsequently asked to speak with the detectives, the officers read the

Miranda rights and began questioning defendant a second time. Defendant

spoke willingly about the incident and did not reassert his Miranda rights, even

after learning the victim had died.

      The detectives were not required to tell defendant that he was a suspect or

that the victim had died. Defendant was aware of his status as a suspect when


                                                                         A-5141-16T1
                                      12
he was arrested at the scene of the crime. The detectives did not exert any

physical punishment, mental exhaustion, or otherwise cajole defendant into

giving a statement. The officers truthfully stated no charges had been brought

against defendant. Both interviews were short. The first interview lasted two

minutes and the second interview lasted approximately thirty-five minutes.

Defendant's statement to the police was a product of his free will, and the

detectives did not mislead him. Accordingly, the record supports the judge's

denial of defendant's motion to suppress.

      We next turn to defendant's argument that the prosecutor misstated the

definition of recklessness during her summation. "Where a defendant fails to object

to the challenged statements and thus deprives the trial judge of the opportunity to

ameliorate any perceived errors, he must establish that the comments constitute plain

error under Rule 2:10-2." State v. Feal, 194 N.J. 293, 312 (2008). Plain error must

be "'sufficient [to raise] a reasonable doubt as to whether the error led the jury to a

result that it otherwise might not have reached.'" Ibid. (quoting State v. Daniels, 182

N.J. 80, 102 (2004)). Failure to object to the prosecutor's statements at trial

"indicates that defense counsel did not believe the remarks were prejudicial at the

time," and "deprives the court of the opportunity" to address and cure the error. State




                                                                               A-5141-16T1
                                         13
v. Timmendequas, 161 N.J. 515, 576 (1999) (citing State v. Irving, 114 N.J. 427,

444 (1989)).

      "[P]rosecutors in criminal cases are expected to make vigorous and forceful

closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors are

granted wide latitude to make "fair comment" on the evidence so long as the

argument stays within legitimate inferences that can be deduced from the evidence.

See State v. Mayberry, 52 N.J. 413, 437 (1968). Prosecutors may not attempt to

argue facts to the jury which are not supported by the record. Frost, 158 N.J. at 85.

      For the first time on appeal, defendant claims that the prosecutor misstated the

law in her closing arguments to the jury. Specifically, defendant contends the

prosecutor's explanation of reckless conduct ignored the requirement of a "conscious

disregard of a substantial risk," and instead improperly equated recklessness with an

accident. Defendant asserts the jury heard two different definitions of recklessness,

from the court and the prosecutor, and it cannot be determined whether the jury

applied the correct legal standard in assessing the lesser manslaughter offenses. As

such, defendant claims his conviction must be reversed.

      The prosecutor did not misstate the law and her comments were proper. The

prosecutor stated on at least nine separate occasions that the judge would instruct the

jurors on the law. The judge gave the jury correct instructions regarding reckless


                                                                               A-5141-16T1
                                         14
conduct. The prosecutor's comments did not substantially prejudice defendant's

fundamental right to have a jury fairly evaluate the merits of his defense or reach a

verdict it otherwise would not have reached.

      Moreover, the jury had more than ample evidence to conclude the victim's

death was not an accident as defendant maintained. The victim was stabbed

three times, including the fatal wound to his thigh. The State presented evidence

in the form of videotapes from surveillance cameras, eyewitness testimony, and

DNA evidence. Thus, even if the prosecutor's comments were improper, the

jury had overwhelming evidence of defendant's guilt. We are not persuaded that

the jury reached a verdict that it otherwise would not have reached but for the

prosecutor's summation.

      The arguments in defendant's pro se supplemental brief are without

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

      Affirmed.




                                                                             A-5141-16T1
                                        15
