                               NOT FOR PUBLICATION WITHOUT THE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-0393-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LATASHA M. BAKER,

   Defendant-Appellant.
————————————————
        Submitted April 11, 2018 – Decided September 24, 2018

                 Before Judges Fuentes and Suter.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Camden County, Indictment No. 12-08-2188.

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

                 Mary Eva Colalillo, Camden County Prosecutor,
                 attorney for respondent (Jason Magid, Assistant
                 Prosecutor, of counsel and on the brief).

        The opinion of the court was delivered by

Suter, J.A.D.
      Defendant Latasha M. Baker appeals the July 14, 2014 judgment of

conviction following a jury trial, contending the court erred by not instructing

the jury on the affirmative defense to felony-murder, by not suppressing

statements she made to the police and by not granting her motion for judgment

of acquittal. She also challenges her sentence as excessive. We affirm the

convictions and sentence.

                                     I

      We relate these facts based on the record from defendant's trial. On

October 14, 2009, Silvia Ramos Morales and her husband Oscar Hernandez were

about to close their bakery in Woodlynne for the evening when defendant

entered carrying a baby and asked to buy a slice of cake. She left when they did

not have what she wanted but returned in a few minutes. Shortly after, three

men came in. One had a mask and a gun. He followed Hernandez as he ran into

the kitchen, fatally shooting Hernandez in the chest. The other men, who

blocked the entrance, told two prospective customers not to enter. Sensing

something was wrong, they alerted a police officer. The customers in the store

were robbed. They told the police the men were armed. The robbers attempted

but were not able to open the cash register, and left the bakery when the police

arrived.


                                                                        A-0393-14T3
                                         2
      Defendant and her baby were in the bakery throughout this. Just after the

incident, defendant told the police that a Hispanic man in a red jacket, who she

did not recognize, "snatched" her cell phone. The next day, October 15, 2009,

the police traced defendant's cell phone signal to her apartment, which was

located on the same block as the bakery. After she consented to a search of the

apartment for the phone, the officers found the cell phone under her couch.

      The police interviewed defendant that day for three hours at the

prosecutor's office and her statement was recorded. Defendant's explanation to

the police about how the cell phone was in her apartment varied, but all the

explanations indicated the robbers had to know her. She claimed the phone was

returned to her by the robbers as a favor because she was a single mother, or to

prevent her from calling the police. She speculated that she was being framed

and that a neighbor was involved in the robbery. Further, she claimed it could

have been her neighbor's sister's boyfriend. Defendant also claimed she spoke

to her brother, Rashawn Carter, twice that day around the time she entered the

bakery. Following her interview, the police took her home.

      On October 22, 2009, defendant agreed to be interviewed again at the

prosecutor's office. This interview was for ten hours. By this time, the police

had reviewed surveillance video from the bakery that showed defendant leaving


                                                                        A-0393-14T3
                                       3
the bakery and returning, a fact she had not mentioned to the police during the

October 15, 2009 interview. She explained to the police that she left to go to

another store. However, the officers pointed out that the store was in the

opposite direction from her movements depicted on the videotape.

        Defendant's phone records showed she made eighteen calls to her brother

Rashawn Carter, just before and after the robbery occurred, not one or two calls

as she said in her pervious interview. Historical cell site analysis revealed that

both defendant's and her brother's phones were located near the bakery at that

time. Defendant claimed that her sister must have used her phone.

        The police asked defendant to take a lie detector test. She declined to do

so saying "I don't know, I don’t know, I don’t think I should take it. If . . .

they think I'm the suspect then . . . I should wait until I get a lawyer or

something." The interview continued after that. The police did not administer

Miranda1 warnings before taking either statement.

        Other evidence about the robbery was presented at trial. Eddie Ball, the

father of one of defendant's children, identified Rashawn Carter from a

videotape of the robbery; Carter was wearing Ball's distinctive red jacket that he

had left at defendant's apartment. The customers, who were turned away when



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-0393-14T3
                                         4
the robbery was in progress, also identified Rashawn Carter as one of the men

at the bakery. Michael Streater testified that in November 2009, he and William

Cooper were cellmates, and Cooper told him that he shot someone at the bakery.

The victim's wife testified about her identification of the man who shot her

husband. The police arrested Rashawn Carter and William Cooper as they were

hiding in a pantry closet at defendant's sister's house.

      Following defendant's indictment, she filed a motion to suppress her

October 15, 2009 and October 22, 2009 statements. The motion judge denied

the suppression of the October 15, 2009 statement, but granted in part the

suppression of the October 22, 2009 statement. With respect to the October 15

statement, the court found:

            [t]he totality of the circumstances, including the
            duration, location, time, nature of the questions,
            language employed in the interrogations, the conduct of
            the police, the status of the interrogators, status of the
            suspect, and all the other relevant factors, including her
            experience, her history, her knowledge, her
            expressions, her background, indicate that on balance
            that was clearly not a custodial interrogation. And . . .
            objectively, looking at the totality of the circumstances,
            a reasonable person in the defendant's position would
            have concluded that . . . [t]here was no significant
            deprivation of her freedom.

      However, the court did not have the same "comfort level" with the October

22, 2009 statement. The court found the October 22 interview was lengthy and

                                                                         A-0393-14T3
                                         5
that the tone of the interview changed over time. The record shows defendant

stated, "if they think I'm the suspect then . . . I should wait until I get a lawyer

or something," meaning if she were a suspect then she wanted counsel. The

interrogating police officers accused defendant of protecting someone. They

asked defendant whether she wanted to go home. The court found:

             that Miranda . . . applies . . . in light of the tone, in light
             of the nature of her response . . . , and in light of what
             went on thereafter, . . . [a]nd her concerns and her
             perception of her status and the nature of the
             interrogation from that point on militate in favor of the
             defense and constitute invocation of Miranda and
             should be excluded under Miranda.

The court suppressed the part of defendant's statement that was tainted by these

interrogation tactics.

      The jury convicted defendant of first-degree felony-murder, N.J.S.A.

2C:11-3(a)(3);    second-degree      robbery,     N.J.S.A.    2C:15;     second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2; and fourth-degree hindering

apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4).               After merging the

relevant charges, the judge sentenced defendant on the felony-murder count to

a term of forty-five years imprisonment, subject to an eighty-five percent period

of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, five




                                                                               A-0393-14T3
                                           6
years of parole supervision and a consecutive term of eighteen months for

hindering apprehension.

                                     II

     On appeal, defendant raises the following issues:

           POINT I

           THE TRIAL JUDGE ERRED IN NOT CHARGING
           THE JURY WITH THE AFFIRMATIVE DEFENSE
           TO FELONY MURDER, AS PROVIDED BY N.J.S.A.
           2C:11-3a(3)(a)-(d). (Not Raised Below)

           POINT II

           THE TRIAL COURT ERRED IN FINDING THAT
           MS. BAKER WAS NOT IN CUSTODY AT THE
           TIME SHE WAS BEING INTERROGATED BY THE
           POLICE. U.S. Const. Amends. V, XIV; N.J. Const. Art.
           I, para. 10.

           POINT III

           THE TRIAL JUDGE ERRED IN DENYING THE
           DEFENDANT'S MOTION FOR A JUDGMENT OF
           ACQUITTAL ON THE CONSPIRACY COUNT AS
           THERE WAS NO EVIDENCE OF AN AGREEMENT
           PUT BEFORE THE JURY

           POINT IV

           THE DEFENDANT'S SENTENCE IS EXCESSIVE.




                                                                  A-0393-14T3
                                      7
                                      A

      In argument Point I, defendant contends that the trial court should have

charged the jury with the affirmative defense to felony-murder. See N.J.S.A.

2C:11-3(a)(3)(a)-(d). We review this issue under the standard of plain error,

meaning an error "clearly capable of producing an unjust result," because it was

not previously raised to the trial court. See R. 2:10-2.

      The Criminal Code provides an affirmative defense to felony murder

where a defendant is not the only participant in the underlying crime and the

defendant:

             (a) Did not commit the homicidal act or in any way
             solicit, request, command, importune, cause or aid the
             commission thereof; and

             (b) Was not armed with a deadly weapon, or any
             instrument, article or substance readily capable of
             causing death or serious physical injury and of a sort
             not ordinarily carried in public places by law-abiding
             persons; and

             (c) Had no reasonable ground to believe that any other
             participant was armed with such a weapon, instrument,
             article or substance; and

             (d) Had no reasonable ground to believe that any other
             participant intended to engage in conduct likely to
             result in death or serious physical injury.

             [N.J.S.A. 2C:11-3(a)(3)(a)-(d).]


                                                                        A-0393-14T3
                                          8
      Defendant argues the trial court should have given the affirmative defense

charge because she was acquitted of conspiracy to commit armed robbery and

she did not know the other participants were armed. However, at trial, defendant

contended she was not a participant in the robbery at all. The affirmative

defense charge was not consistent with her defense strategy because it was a

defense based on actions she claimed she did not do. Thus, it was not plain error

for the trial court to charge felony murder without the affirmative defense when

to do so was not consistent with defendant's defense strategy. See State v.

Daniels, 224 N.J. 168, 184 (2016).

                                       B

      Defendant contends the trial court should have suppressed her October 15,

2009 statement and all of her October 22, 2009 statement to the police.2

Defendant argues the police had a strong suspicion by October 15 that she was

involved in the robbery. According to defendant, their aggressive questioning

after her cellphone was found in her apartment revealed they viewed her as a

suspect. Then, on October 22, 2009, she was confronted with her cell phone

records and the police asked her to take a lie detector test. Although the motion

judge suppressed a portion of the October 22 statement she contends all of her


2
  Defendant acknowledges she was not in custody when she gave her first
statement to the police on October 14, 2009, and did not seek its suppression.
                                                                         A-0393-14T3
                                       9
statements "were an integral part of the State's case" and should have been

suppressed. We disagree.

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 426 (2017) (citing State v. Scriven, 226

N.J. 20, 40 (2016)).     We do so "because those findings 'are substantially

influenced by [an] opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218

N.J. 412, 424-25 (2014) (alterations in original) (citing State v. Johnson, 42 N.J.

146, 161 (1964)). We owe no deference, however, to conclusions of law made

by trial courts in suppression decisions, which we instead review de novo. State

v. Watts, 223 N.J. 503, 516 (2015) (citing State v. Vargas, 213 N.J. 301, 327

(2013)).

      Custodial interrogation means "questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way." State v. Hubbard, 222 N.J. 249, 265-

66 (2015) (quoting Miranda, 384 U.S. at 444). In determining whether a

custodial interrogation has occurred, a court must examine all circumstances


                                                                           A-0393-14T3
                                       10
surrounding the interrogation. State v. O'Loughlin, 270 N.J. Super. 472, 477

(App. Div. 1994). "The critical determinant of custody is whether there has been

a significant deprivation of the suspect's freedom of action based on the

objective circumstances . . . ." Hubbard, 222 N.J. at 266-67 (quoting State v.

P.Z., 152 N.J. 86, 103 (1997)). The inquiry is "'how a reasonable [person] in

the suspect's position would have understood his situation.'" Id. at 267 (quoting

Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). The State must also prove a

defendant's statement was freely and voluntarily given. State v. Hreha, 217 N.J.

368, 383 (2014).

      We discern no error by the motion judge. The question is not as defendant

has posed it, whether the statements were an integral part of the State's case, but

whether she reasonably believed she was not free to leave. The motion judge

carefully analyzed each statement under the factors described in State v. Brown,

352 N.J. Super. 338, 352 (App. Div. 2002). We agree based on his analysis that

defendant's October 15, 2009 statement was not the result of a custodial

interrogation. Defendant was only asked at that time to explain how the stolen

cell phone was returned to her house. By the time she was questioned on

October 22, 2009, however, the police had more information from the cell phone

records and the surveillance video and asked her about inconsistencies from her


                                                                           A-0393-14T3
                                       11
prior statements. The fact that the interview is conducted at the prosecutor's

office did not make this a custodial interrogation. See State v. Micheliche, 220

N.J. Super. 532, 536 (App. Div. 1987) (questioning in a police station does not

necessarily establish custody). The fact that the police may have a suspicion

that she was involved in the crime does not convert the interview to a custodial

interrogation. See State v. Nyhammer, 197 N.J. 383, 406 (2009).

      Here, the motion judge's order was based on the change in the tone of the

interview toward defendant when she declined to take a lie detector test,

expressing she wanted a lawyer if she were a suspect. We agree with the motion

judge that a reasonable person could have concluded she was not free to leave

at that point.

                                         C

      Defendant contends the trial judge erred by denying her motion for

acquittal under Rule 3:18-1 on the conspiracy count, arguing there was no

evidence of a conspiracy. Our standard of review is whether there was sufficient

evidence to warrant a conviction. R. 3:18-1. See State v. Reyes, 50 N.J. 454,

458-59 (1967) (providing that the issue is whether there is sufficient evidence

for a reasonable jury to find guilt beyond a reasonable doubt "giving the State

the benefit of all its favorable testimony as well as all of the favorable inferences


                                                                             A-0393-14T3
                                        12
which reasonably could be drawn therefrom."). The essential requirement of a

conspiracy is an agreement with another person to engage in conduct that is a

crime or an attempt to do so or to agree to aid another with planning or

commission of a crime or attempt to do so. N.J.S.A. 2C:5-2(a)(1)-(2); See In re

State ex rel. A.D., 212 N.J. 200, 222 (2012).

      Here, there was sufficient credible evidence that defendant was part of the

plan to commit robbery. She was in communication with the robbers before and

after it, appeared to act as a look out, misled the police about the return of her

cell phone and then about the identity of the robbers. This was sufficient to deny

the motion for acquittal.

                                        D

      Finally, Defendant argues her forty-five year sentence for felony murder

and consecutive eighteen-month term for hindering is excessive because she did

not have a weapon or know that the other participants were armed. We reject

defendant's contention that her sentence was excessive.        Our review of a

sentencing determination is limited. State v. Roth, 95 N.J. 334, 364-65 (1984).

We review a judge's sentencing decision under an abuse of discretion standard.

Id. at 363-64. We must determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the

                                                                          A-0393-14T3
                                       13
            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.'

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting Roth, 95 N.J. at 364-65).]

      Here, the court found aggravating factors: N.J.S.A. 2C:44-1(a)(3) the risk

of re-offense; (6) the extent of defendant's prior criminal record and the

seriousness of the offenses; and (9) the need to deter. It placed significant

weight on factor three because of defendant's "consistent life of crime since the

age of 19" and her failed opportunities for rehabilitation. It placed moderate

weight on factor six considering that none of her prior offenses involved

violence. The court placed significant weight on factor nine, the need to deter.

      The court found no mitigating factors. Defendant contends the court

should have considered defendant's children in mitigation. The court found "she

put her own selfish interests before those of her one-year-old child, who was

running around the store as the three armed robbers burst into the store." The

court considered her prior criminal record. There was nothing erroneous about

the court's analysis nor did the sentence shocks one's conscience, given the

nature of the offenses. The sentence was within the sentencing guidelines. We

thus discern no abuse of discretion.

                                                                         A-0393-14T3
                                       14
Affirmed.




                 A-0393-14T3
            15
