                                NOT FOR PUBLICATION WITHOUT THE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-4421-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DEBRA M. STINSON,

     Defendant-Appellant.
______________________________

                    Argued February 27, 2019 – Decided June 13, 2019

                    Before Judges Accurso, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 15-09-1762.

                    David Anthony Gies, Designated Counsel, argued the
                    cause for appellant (Joseph E. Krakora, attorney; David
                    Anthony Gies, on the briefs).

                    Roberta Di Biase, Supervising Assistant Prosecutor
                    argued the cause for respondent (Bradley D. Billhimer,
                    Ocean County Prosecutor, attorney; Samuel J.
                    Marzarella, Chief Appellate Attorney, of counsel;
                    Roberta Di Biase, on the brief).

PER CURIAM
      Defendant Debra M. Stinson appeals from a judgment of conviction

entered after a jury found her guilty of third-degree arson, N.J.S.A. 2C:17-

1(b)(2), a lesser-included offense of the indicted crime, second-degree

aggravated arson, N.J.S.A. 2C:17-1(a).       Her arguments on appeal relate to

pretrial motions she made to suppress her statement to a police officer near the

scene of the arson and another statement made at the police station, as well as a

motion to bar the State's arson expert's testimony at trial:

            POINT I

            THE TRIAL COURT ERRED WHERE IT DID NOT
            SUPPRESS      DEFENDANT'S      PRETRIAL
            STATEMENTS MADE IN RESPONSE TO [THE
            POLICE   OFFICER'S]  QUESTIONS   WHICH
            ATTEMPTED TO ELICIT THE ORIGIN AND
            CAUSATION OF THE FIRE.

            POINT II

            THE TRIAL COURT ERRED WHERE IT FOUND
            THAT DEFENDANT'S CUSTODIAL STATEMENT
            WAS VOLUNTARY WITHOUT BALANCING THE
            DETECTIVES' INTERROGATION TECHNIQUES
            AND DEFENDANT'S MENTAL LIMITATIONS
            WITH WHICH THEY WERE KNOWLEDGEABLE.

            POINT III

            THE TRIAL COURT ERRED WHERE IT DID NOT
            BAR THE ARSON EXPERT'S TESTIMONY AS TO
            CAUSATION UPON WHICH HE BASED HIS


                                                                         A-4421-16T1
                                         2
            OPINION, AT LEAST IN PART, ON DEFENDANT'S
            PRETRIAL ADMISSION OF GUILT.

The trial court did not err in denying defendant's motions and, as such, we

affirm.

      Defendant made her first statement to a uniformed Manchester Township

police officer who responded to a still-active fire in a duplex. The officer

ascertained from the first officer on the scene that both units of the duplex had

been evacuated and that the resident of Unit A was seated on a bench across the

street from the duplex. The officer approached the resident, later identified as

defendant, as she was being evaluated by first-aid squad members and asked her

to provide pedigree information – name, date of birth, address, phone number

and social security number; defendant complied.          The officer also asked

defendant "if she knew anything about the fire. How it started, you know, if

. . . she could tell [him] what happened." According to the officer, defendant

replied that she "started a fire in a bucket of shit, and threw it out the window."

Finding her response "odd," the officer asked what she meant by that. According

to the officer, defendant explained that "she lit plastic bottles on fire, because

Lucifer told her to burn all of her good white pants."




                                                                           A-4421-16T1
                                        3
      The officer did not ask any other questions. He did not arrest defendant.

He left defendant, still seated on the bench, with another officer and met with a

detective to whom he disclosed his conversation with defendant.

      The motion judge, who heard the officer testify at the suppression hearing,

found the officer "was not interrogating" defendant but was "simply asking what

happened to cause the fire." The judge concluded defendant "was not in police

custody and voluntarily confessed her activity in creating the fire without police

coercion."

      Our review of a trial judge's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). "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,

425-26 (2017) (quoting 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) (alteration in

original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no

deference, however, to conclusions of law made by trial courts in suppression


                                                                          A-4421-16T1
                                        4
decisions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516

(2015).

       We disagree with defendant that the officer conducted an investigatory

stop without reasonable suspicion, that later escalated "to the even more

demanding scenario of an unwarranted seizure of her person requiring

Miranda[1] warnings." The evidence establishes that the officer's encounter with

defendant was a field inquiry.

       An officer is not prohibited from approaching a person and engaging in a

voluntary conversation – a field inquiry. State v. Stampone, 341 N.J. Super.

247, 252 (App. Div. 2001). "[A] field [inquiry] is not a Fourth Amendment [2]

event 'so long as the officer does not deny the individual the right to move.'"

State v. Egan, 325 N.J. Super. 402, 409 (Law Div. 1999) (quoting State v.

Sheffield, 62 N.J. 441, 447 (1973)); see also State v. Rosario, 229 N.J. 263, 273-

74 (2017) (citing Egan favorably). "A field inquiry is permissible so long as the

questions '[are] not harassing, overbearing, or accusatory in nature.'" State v.

Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina,


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
   U.S. Const. amend. IV; see State v. Handy, 206 N.J. 39, 45-46 (2011)
(recognizing that, like the Fourth Amendment, the "parallel language" of N.J.
Const. art. I, ¶ 7 protects citizens from unreasonable searches and seizures).
                                                                           A-4421-16T1
                                        5
175 N.J. 502, 510 (2003)). "The officer's demeanor is relevant to the analysis.

For example, 'an officer would not be deemed to have seized another if his

questions were put in a conversational manner, if he did not make demands or

issue orders, and if his questions were not overbearing or harassing in nature. '"

State v. Rodriguez, 172 N.J. 117, 126 (2002) (citations omitted) (quoting State

v. Davis, 104 N.J. 490, 497 n.6 (1986)).

      The officer testified defendant was calm when he approached her. He did

not limit her movement; in fact, defendant felt comfortable enough to get up

from the bench. The officer did not restrict defendant's movement during the

encounter.   The conversation was brief. The officer did not know the origin of

the fire when he approached defendant, so the questions posed to defendant were

conversational, not accusatory or pointed; he was evidently surprised by

defendant's reply. He did not consider defendant a suspect in the arson until she

admitted she set the fire. In short, the officer did nothing to convert that field

inquiry to an investigative stop or a seizure.

      It is of no moment that the officer left defendant in the company of another

officer when he left to speak to the detective. He posed no further questions to

defendant. Defendant made no other statement to him. The motion to suppress

the statements made to the officer was properly denied.


                                                                          A-4421-16T1
                                         6
      Defendant also challenges the denial of her motion to suppress the

recorded statement she made at the police station to two detectives.           The

Manchester officer briefed a Manchester detective about the conversation he had

with defendant. The Manchester detective and an Ocean County Prosecutor's

detective then approached defendant – still seated on the bench – and, after

ascertaining that she did not desire any medical attention, asked her if she would

go to the police station and provide a statement. Defendant agreed. The video-

recorded statement began at 5:37 p.m. and ended at approximately 6:13 p.m.

Defendant contends in her merits brief the trial court erred by failing to consider

that the detectives "knew of and exploited [defendant's] mental illness" and

argues that her statement was not voluntary because "the detectives' custodial

interrogation was coercive in light of defendant's mental illness."

      The motion judge heard the testimony of the Manchester detective, Dr.

Kenneth Weiss – a psychiatrist called as a defense expert witness – and viewed

the videotaped statement. We review her decision under the standard we have

already announced adding only that, because the judge's factual findings were

based on her review of the videotaped statement, we review the videotape to

verify that the judge's findings were supported by sufficient evidence in the

record. State v. Hubbard, 222 N.J. 249, 262-65 (2015).


                                                                           A-4421-16T1
                                        7
      "Confessions obtained by police during custodial interrogation are barred

from evidence unless the defendant has been advised of his [or her]

constitutional rights." State v. Timmendequas, 161 N.J. 515, 613 (1999). Before

a defendant's statement is admitted, the State must prove beyond a reasonable

doubt that the defendant, in light of all the circumstances, knowingly,

intelligently and voluntarily waived his or her Miranda rights. State v. Knight,

183 N.J. 449, 461-63 (2005).

      The State must also prove beyond a reasonable doubt that a defendant's

statement to the police was not the product of coercion or "official misconduct."

See Id. at 463. In determining the voluntariness of a defendant's statement,

courts consider whether the statement was "'the product of an essentially free

and unconstrained choice by its maker,' in which case the statement may be used

against the defendant, or whether the defendant's 'will has been overborne and

his [or her] capacity for self-determination critically impaired.'" State v. P.Z.,

152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-

26 (1973)). "This issue can be resolved only after an assessment of the 'totality

of the circumstances' surrounding the statement." Ibid. (quoting Arizona v.

Fulminante, 449 U.S. 279, 285-86 (1991)).




                                                                          A-4421-16T1
                                        8
      From our review of the record, we discern the motion judge's conclusion

that defendant, after knowingly, intelligently and voluntarily waiving her

Miranda rights, "was not coerced or intimidated by police . . . during the

interview at the police station" is well supported. Defendant agreed to go to the

police station. There police confirmed defendant was not in need of medical

attention and provided her with requested water.       Although defendant now

argues that the detectives ignored her "complain[t] that she had not slept for

several days," defendant appeared awake and alert.

      Defendant responded to the detective's preliminary questions; their

conversation was cordial. Defendant listened to the Miranda warnings with, in

her words, "[e]ars wide open" and interrupted the administration of rights to tell

the detective, "I know that it's in the constitution" and that she had read it in

school. When the detective finished reading the rights, defendant acknowledged

that she understood the rights and signed the forms agreeing to the waiver. As

the motion judge found, defendant – who completed a two-year associate's

degree in computer science – seemed "to be of above-average intelligence." Her

own expert, Dr. Weiss, acknowledged on cross-examination that defendant had

"at least average" intelligence.




                                                                          A-4421-16T1
                                        9
      Just after the forms were signed, defendant said, "Oh please, please ask

me the one question that I want to get off my chest." Despite defendant's

interjected non sequiturs, she thereafter responded to the detectives' questions

about the incident, providing details of how she started the fire. Contrary to

defendant's contention in her merits brief, the detectives did not tell "her the

facts they wanted to know and she agreed." Defendant and the detectives spoke

calmly; their voices were not raised. The detectives' questions were not at all

coercive; they were patient and non-threatening.

      Dr. Weiss opined defendant was having a "manic episode" during the

interview and her mental illness prevented her from having "the capacity to sign

away her rights knowingly and intelligently." The judge properly rejected that

opinion, State ex rel. C.A.H., 89 N.J. 326, 343 (1982), concluding:

             Even though Dr. Weiss stated in his testimony that he
             believed [defendant's] mental illness caused her will to
             be overborne such that she could not understand the
             implications of waiving her rights, he could not dispute
             her [orientation as to] person, place and time and of her
             right to remain silent or request an attorney.

The judge noted that defendant "was able to correctly answer questions such as

who the President of the United States was, what year it was, [defendant's]

address, . . . questions about her family and background," and the extent of her

education.

                                                                         A-4421-16T1
                                       10
      As we observed in State v. Smith:

             The fact that defendant was suffering from a mental
             illness at the time of the questioning did not render his
             waiver or his statement involuntary. The United States
             Supreme Court has held that "coercive police activity is
             a necessary predicate to [a] finding that a confession is
             not 'voluntary' within the meaning of the Due Process
             Clause of the Fourteenth Amendment." Colorado v.
             Connelly, 479 U.S. 157, 167 (1986). The Court
             stressed that the "Fifth Amendment privilege is not
             concerned 'with moral and psychological pressures to
             confess emanating from sources other than official
             coercion.'" Id. at 170 (quoting Oregon v. Elstad, 470
             U.S. 298, 304-05 (1985)). "The voluntariness of a
             waiver of this privilege [was said to] depend[] on the
             absence of police overreaching, not on 'free choice' in
             any broader sense of the word." Ibid. The Court added
             that "the relinquishment of the right [to remain silent]
             must have been voluntary in the sense that it was the
             product of a free and deliberate choice rather than
             intimidation, coercion or deception. . . ." Ibid. (citing
             Moran v. Burbine, 475 U.S. 412, 421 (1986)).

             [307 N.J. Super. 1, 10-11 (App. Div. 1997) (alterations
             in original).]

      Nothing in the record supports defendant's contention that the detectives

exploited defendant's mental illness or employed coercion to obtain her

statement.   The totality of the circumstances supports the motion judge's

findings that, despite her mental illness, defendant's waiver of Miranda rights

and her statement were made knowingly, intelligently and voluntarily. We find

no reason to disturb the judge's findings or conclusion.

                                                                         A-4421-16T1
                                       11
      Defendant urges that the trial court erred in allowing the State's arson

expert to testify, based in part on defendant's statement to police, that the c ause

of the fire was incendiary. Conceding in her merits brief that the expert "may

have been able to testify permissibly that based on his special knowledge and

experience by the process of elimination the objective characteristics of the

scene show the fire was intentionally set, [she avers] he is not able to testify that

based on defendant's admission of guilt the fire was incendiary."

      After opining that the origin of the fire was "inside the living room of the

structure and the point of origin [was] inside the plastic pot, more specifically

on top of the humidifier," the State's expert testified on direct examination about

the cause of the fire:

             Prosecutor: And how do you get to the opinion as to
             the cause of the fire?

             Detective: The cause of the fire is determined through
             the scientific method, which I went over earlier, the
             multiple stages of that with the hypothesis and testing
             the hypothesis, and going through the process of
             elimination where I went through the many photos last
             week that showed that I eliminated the electrical in that
             room and all the other major utilities within that
             structure.

             Prosecutor: What did you use as far as getting to your
             opinion as the cause of the fire? Did you review items?



                                                                             A-4421-16T1
                                        12
            Detective: Yes. It's based on the scene examination
            itself, but it's also based off of all police reports that
            were conducted that day, all photographs, all statements
            regarding witnesses. . . . Also the Defendant's
            statement[] itself. And based on my training and
            experience, I was able to determine a cause of the fire.

            Prosecutor: And what is – can you tell the jury what
            your opinion is as to the cause of the fire?

            Detective: That it's incendiary. It was intentionally set
            by a person using an open flame to available
            combustibles, such as a pair of white pants and various
            other cardboard products and any other combustibles
            that were located with inside that plastic pot.

      The record belies defendant's argument. Although the expert reviewed

defendant's statement – together with many other documents and photographs –

he did not say that he relied on defendant's admission of guilt. He never testified

that defendant intentionally set the fire.    His conclusion that the fire was

intentionally set was based on the elimination of other sources, see Creanga v.

Jardal, 185 N.J. 345, 356 (2005) (discussing how an expert may use process of

elimination to come to his or her conclusion); see also State v. Sharp, 395 N.J.

Super. 175, 181-82 (Law Div. 2006) (allowing an opinion on the causation of

fire based on a process of elimination), and his examination of the scene and

documentary and photographic evidence, State v. Townsend, 186 N.J. 473, 494

(2006) (holding expert opinions must be grounded in "facts or data derived from


                                                                           A-4421-16T1
                                       13
(1) the expert's personal observations, or (2) evidence admitted at the trial, or

(3) data relied upon by the expert which is not necessarily admissible in evidence

but which is the type of data normally relied upon by experts in forming opinions

on the same subject" (quoting Biunno, N.J. Rules of Evidence, cmt. 1 on

N.J.R.E. 703 (2005))).

      "The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).

We afford deference "to a trial court's decision to admit expert testimony,

reviewing it against an abuse of discretion standard."        Id. at 53 (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)). We

conclude the trial judge did not abuse her discretion in admitting the arson

expert's testimony.

      Affirmed.




                                                                          A-4421-16T1
                                       14
