                             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                        NOT FOR PUBLICATION WITHOUT THE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-3881-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY BURKHALTER,

     Defendant-Appellant.
_____________________________

              Submitted April 19, 2018 –         Decided July 25, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              14-04-0437.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lon Taylor, Assistant Deputy
              Public Defender, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Caitlyn Kelly,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Following the denial of his motion to suppress his statement

to police pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
defendant entered a negotiated guilty plea to two counts of first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3),1 and one

count of second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b), reserving his right to appeal the denial of his Miranda

motion.   He was sentenced in accordance with the plea agreement

to an aggregate term of twenty-one years' imprisonment, with an

eighty-five percent period of parole ineligibility pursuant to the

No Early Release Act, N.J.S.A. 2C:43-7.2.   In addition, defendant

was ordered to serve the special sentence of parole supervision

for life, N.J.S.A. 2C:43-6.4, and comply with the requirements of

Megan's Law, N.J.S.A. 2C:7-1 to -23.

      On appeal, defendant raises the following single point for

our consideration:

           POINT I

           UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE
           STATEMENT    BY    A   SEMI-ILLITERATE    AND
           HOSPITALIZED DEFENDANT, HANDCUFFED TO HIS BED
           AND NOT FEELING WELL AS A RESULT OF MULTIPLE
           GUNSHOT WOUNDS, SHOULD HAVE BEEN SUPPRESSED
           SINCE HE WAS INCAPABLE OF VOLUNTARILY WAIVING
           HIS MIRANDA RIGHTS AND GIVING A STATEMENT TO
           POLICE.

Having considered defendant's contention in light of the record

and the applicable legal standards, we affirm.




1
    The charges pertained to two separate victims, K.M. and P.H.

                                 2                          A-3881-16T1
      On January 14, 2014, Judge Robert C. Billmeier conducted a

N.J.R.E. 104(c) hearing, at which Trenton Police Officer Nelson

Cartagena and Mercer County Prosecutor's Office Detectives Anthony

Petracca and Matthew Norton testified for the State.           Cartagena

and   Petracca   testified   about   defendant's    December   11,   2012

statement given while hospitalized for near-fatal gunshot wounds,

which was the subject of the Miranda hearing and this appeal.

Norton testified about an earlier October 19, 2012 statement given

at Trenton police headquarters.2         The judge also reviewed the

December 11, 2012 recorded interview.

      Petracca was assigned to investigate separate cases involving

defendant, who was both the suspect in three sexual assaults,

occurring on October 12, November 24, and November 27, 2012, and

the victim of a November 28, 2012 shooting.        The October 12, 2012

sexual assault occurred in Trenton during a burglary at the home

of the victim, K.M.    K.M. selected the photograph of defendant's

identical twin brother, Steven Burkhalter, out of a photo array

and identified him as her assailant.       However, Steven Burkhalter

was incarcerated in Missouri at the time of the assault.




2
   On appeal, defendant does not challenge the admissibility of
his October 19, 2012 statement.



                                     3                           A-3881-16T1
     In a police interview conducted by Norton on October 19,

2012, in connection with the October 12, 2012 sexual assault of

K.M.,3 defendant did not provide any incriminating statements, but

acknowledged   that   he    was    known   by   the    street   name   "Twin."

Thereafter, J.R., the victim of the November 24, 2012 sexual

assault,   identified      her    assailant     by    the   nickname   "Twin."

Additionally, P.H., the victim of the November 27, 2012 sexual

assault that occurred during a burglary of her Hamilton home,

identified defendant as her assailant from a photo lineup.

     In the November 28, 2012 shooting, defendant was shot four

times by two different assailants and suffered extensive internal

injuries, requiring emergency surgery.           Following the surgery, on

December 4, 2012, Petracca went to interview defendant in his

hospital room at Capital Health System.                However, due to his

medical condition and difficulty speaking with a suction tube

inserted in his mouth, defendant was only able to give Petracca

the street name of one of the shooters.




3
    The recorded interview was conducted after Norton advised
defendant of his Miranda rights and obtained a written waiver of
his rights.    During the administration of the rights, because
defendant advised Norton he could not read, Norton read the rights
as well as the waiver to defendant. The ensuing colloquy between
defendant and Norton also included Norton explaining in detail the
meaning of the word "coercion" to defendant.

                                      4                                A-3881-16T1
     Petracca returned to the hospital to interview defendant on

December 6 and December 10, 2012.          Although defendant's medical

condition was improving, Petracca refrained from interviewing

defendant on either date after inquiring with the nurse about

defendant's condition.     Nevertheless, after Petracca left the

hospital on December 10, 2012, another Trenton Police Detective

charged defendant in a complaint-warrant with the sexual assault

of J.R. because defendant had expressed his intention to leave the

hospital against medical advice.4

     Cartagena testified that on December 11, 2012, the day after

defendant was charged, he was assigned to defendant's hospital

room to guard him while he was in police custody.                That day,

Cartagena observed defendant for approximately eight hours, during

which defendant watched television, talked, and otherwise behaved

normally, despite being handcuffed to the bed.            At defendant's

request,   Cartagena   telephoned       Petracca   to   advise   him   that

defendant wished to speak with him.       As a result, Petracca arrived

at the hospital some time before 3:30 p.m.               However, before

speaking with defendant, Petracca talked with defendant's nurse

to get an update on his medical condition, as he had in the past.


4
   In its opinion, the trial court noted that a December 10, 2012
progress note from defendant's hospital records indicated that
defendant "had poor thought organization and detailed recall of
events."

                                    5                              A-3881-16T1
       Petracca    inquired    whether   the    "influence     of      a

medication . . . would affect [defendant's] ability to think [or]

make decisions," and confirmed that he would not be interrupting

any planned treatment for defendant.        After receiving medical

clearance,    Petracca    found   defendant's    overall     condition

"substantially" improved and noted "[h]e was no longer attached

to devices to assist his breathing[,] [h]e was no longer draining

saliva from his mouth," and "[h]e was also actually out of the

bed . . . sitting in one of those hospital chairs."    Over the next

two hours, Petracca "continuous[ly]" recorded his interview with

defendant utilizing a "portable recorder that digitally records

audio onto a hard drive," which he then "downloaded . . . to a

CD."

       Initially, the following exchange occurred between defendant

and Petracca:

            DETECTIVE    PETRACCA:    How       are   you
            doing? . . . You doing okay?

            [DEFENDANT]: I'm getting better.

            DETECTIVE PETRACCA: Good. You look a little
            better. . . . Do you know what's going on or
            what?

            [DEFENDANT]: No.

                  . . .

            DETECTIVE PETRACCA: . . . All right. Before
            we get started, I've got to go over a couple

                                  6                            A-3881-16T1
things with you.   And I know that you've
probably been through this process before.
But before we get started, how are you
feeling?

[DEFENDANT]: Not good.

DETECTIVE   PETRACCA:       Not   good?    What's
bothering you?

[DEFENDANT]: (Indiscernible).

DETECTIVE PETRACCA: Well, I'll talk to you
about that, but I just want to make sure first
before we start talking that your head is
clear, that you understand what I'm saying,
and that you're okay, because if you're not
healthy[,] I don't want to be talking to you
if you're not feeling well. So, are you all
right?

[DEFENDANT]: Yes.

DETECTIVE PETRACCA: Okay. . . . I want to go
over some stuff. You just need to listen. If
you have any questions you can ask me, and
then we'll work from there. All right. The
first thing I've got to do with you is read
you your rights [so that] before we talk you
understand what they are. All right? Did you
talk to you[r] mom today?

[DEFENDANT]: (Indiscernible).

DETECTIVE PETRACCA: Yeah.         [S]he called me
last night.

[DEFENDANT]: Am I going to jail?

DETECTIVE PETRACCA: I'm going to talk [about]
all of that.   We'll talk about it.    Let me
just get through all this first. Do you read
and write English?

[DEFENDANT]: I read a little bit.

                        7                           A-3881-16T1
           DETECTIVE PETRACCA: . . . All right.  Then
           I'll read you everything so that you won't
           have to worry about it.

     Then, utilizing the Uniform Mercer County Rights and Waiver

of Rights Forms, Petracca read aloud and reviewed with defendant

his Miranda rights as well as the waiver of rights.           After reading

the waiver of rights form, Petracca explained to defendant,

           This just basically states that you are
           willing to talk to me right now. Okay? I am
           not forcing you. I'm not pressuring you. I'm
           not holding something over your head saying
           you'd better talk to me or else. Okay? And
           actually, you had the officer that was here
           today call me earlier, is that correct? Okay.
           So, you can read that and sign there.     And
           remember, . . . if you decide you don't want
           to talk to me at any point in time you can
           say, Detective, I don't want to talk to you
           anymore, and we'll be done.

Defendant signed the forms, acknowledging his understanding of his

rights   and   of   his   agreement   to   waive   his   rights   and    answer

questions without a lawyer present.          Defendant also acknowledged

on the form that "no promises or threats" were made and that "no

pressure or coercion of any kind" was used against him.

     Petracca also reviewed with defendant and read aloud the

"Arrest Warrant Notice Form," informing defendant that the day

before, he had been charged with sexual assault, and bail in the

amount of "$100,000 with no 10%" was imposed. Defendant questioned

Petracca about the bail and specifically inquired whether there

                                      8                                 A-3881-16T1
was a ten percent option.     Petracca responded there was "[n]o ten

percent" option and explained that "a lot of people . . . use a

bail bondsman" in order to pay a lower percentage, but confirmed

that "[a]t some point, . . . [defendant] may have to go to jail

if [he] can't post bail."

     Defendant expressed frustration at his inability to make a

phone call while hospitalized to make arrangements to post bail.

Petracca agreed to contact defendant's mother and advise her about

the bail but refused "to break [the Trenton Police Department's]

rules" by allowing defendant to speak to his mother directly.5

Defendant also expressed concern about being incarcerated with the

individuals    responsible   for    shooting   him,    to   which   Petracca

responded that if defendant "cooperate[d] with that investigation,

for [his] safety," those individuals would be incarcerated "in a

different jail."

     Next, Petracca requested defendant's consent to obtain a DNA

sample for use in the investigation of the crimes for which

defendant was a suspect.     To that end, Petracca read defendant his

rights   in   connection   with    providing   his    consent.      Defendant

voluntarily agreed to provide two buccal swabs, and after Petracca

explained that the DNA evidence collected at the crime scenes


5
   Cartagena confirmed that defendant was not permitted to make
phone calls or have visitors while he was in police custody.

                                      9                               A-3881-16T1
would incriminate him, defendant eventually made incriminating

statements     about   each     of    the   three    sexual   assaults    and

corresponding burglaries committed by himself and his associates.

     At one point during the interview, when questioned about the

identity of the persons responsible for his near fatal shooting,

defendant stated, "I don't think I want to talk about that no

more."     However, the interview continued with defendant telling

Petracca his concerns about being identified as a "snitch," his

fear for his safety and that of his family members, and his prior

burglary     convictions   in    Missouri,     for    which   he   had   been

incarcerated.

     Following the hearing, on April 17, 2014, Judge Billmeier

issued a written decision denying defendant's motion to suppress

his statement to Petracca.           The judge found the testimony of all

three witnesses credible, and described Cartagena's testimony as

"straight forward" and non-evasive, Petracca's as "forthright,"

and Norton's as "worthy of belief."           Next, the judge determined

that all four of the Miranda factors were satisfied and concluded

that "[d]efendant made a proper waiver of his Fifth Amendment

rights, and provided a statement to Detective Petracca of his own

volition."

     As to the first and second requirements, the judge found

"[d]efendant was properly advised of his rights by Detective

                                       10                            A-3881-16T1
Petracca," and, although "he has difficulty reading," defendant

reviewed and signed the forms after Petracca read them to him.

Turning to the voluntariness of the waiver, guided by State v.

Presha,    163   N.J.     304,   313    (2000),       the    judge    concluded    that

"[c]onsidering     the     totality      of    the    facts    and    circumstances,"

defendant's waiver "was knowing, intelligent and voluntary" and

was not "the product of coercion."                   The judge found support for

his   decision     that    "[d]efendant         clearly       understood    what   the

detective    was   inquiring          about"    and    "was     not    suffering   any

debilitating effects from the medications he was on, or the

injuries    he   suffered"       in    "the    level    of     discussion"    between

defendant and Petracca.

      In that regard, the judge recounted that defendant was twenty-

three-and-one-half years old at the time of the interview, and,

although he "did not complete high school and was of limited

intelligence, he was able to have a two-hour conversation with

Detective Petracca and asked very appropriate questions when the

Detective went through his Miranda rights and waiver."                      The judge

also found the questioning "was not prolonged in nature and

certainly did not involve any 'physical punishment or mental

exhaustion,'" and defendant was "reminded by Detective Petracca

in explaining his Miranda rights, [that] he could tell him he

wanted to stop talking at any time."                   The judge found "further

                                          11                                  A-3881-16T1
evidence of [d]efendant's soundness of mind from [d]efendant's

inquiry as to the DNA evidence the detective discussed."

     Regarding "advice as to constitutional rights," the judge

recounted that "[d]efendant had been apprised of his Miranda rights

and waiver by Detective Norton" two months "prior to the waiver

at issue."     According to the judge, "[d]efendant had properly

waived   his   constitutional   rights"   at   that   time   and,    during

questioning, had denied any involvement in the October 12, 2012

sexual assault.    In addition to the interaction with Norton, the

judge found "[d]efendant was no neophyte to the criminal justice

system."     The judge detailed defendant's "extensive experience

with the criminal justice system in the State of Missouri," where

he had "pled guilty to . . . five burglaries, and spent time in

state prison."

     The judge expressly rejected defendant's argument that "his

hospitalization and poor health, his fear for his safety and the

safety of his mother, his lack of education, his mental limitations

and Detective Petracca's offer of DNA evidence existing," rendered

his waiver the product of coercion.       Likewise, the judge rejected

defendant's assertion that "coercive techniques were used."              The

judge explained:

           Although defendant was in the hospital, feared
           for his safety, and lacked certain educational
           skills, it is clear to this court [d]efendant

                                  12                                A-3881-16T1
          asked Detective Petracca to come visit him at
          the hospital in order to discuss the charges
          against him.     Detective Petracca informed
          [d]efendant if he no longer wanted to talk to
          the Detective at any time, he could stop.
          Detective Petracca was honest and forthcoming
          with [d]efendant when asked questions and made
          no attempt to trick, intimidate, force or
          confuse [d]efendant into making a statement.
          Further, this court does not find the
          [D]etective's offer to aid [d]efendant in
          finding a way to post bail was made in exchange
          for incriminating answers to the [D]etective's
          questions. On the contrary, this court finds
          Detective Petracca offered to speak to
          [d]efendant's mother and offered advice as to
          the services of a bail bondsman prior to any
          questioning or interrogation as to the sexual
          assaults.   Therefore, this court finds the
          fourth factor of the Miranda analysis has been
          satisfied.

     Finally, the judge emphatically rejected defendant's argument

that "the admission of [d]efendant's statement [was] fundamentally

unfair" because "[d]efendant believed Detective Petracca was at

the hospital to discuss the matter in which [d]efendant was the

victim, and not the sexual assaults [d]efendant was charged with."

The judge determined that "a review of the record suggest[ed] just

the opposite," because it was defendant who "invited Detective

Petracca to the hospital to speak with him about the sexual assault

charges pending against him."   The judge elaborated:

               Most    notably,   [d]efendant   [told]
          Detective Petracca he [did] not want to talk
          about his assailant and [did] not end the
          conversation    with  the   Detective   when
          questioned about the sexual assaults.   This

                                13                          A-3881-16T1
          court finds it was [d]efendant who led the
          conversation in the direction of the sexual
          assaults[,] and as such, it is apparent to the
          court [d]efendant had every intention of
          discussing those charges with the Detective.

               Additionally this court finds Detective
          Petracca was clear on his intention to
          question [d]efendant as to the sexual assault
          charges[,] as right from the very start of the
          interrogation, . . . the Detective informed
          [d]efendant of his charges. Additionally, the
          Detective informed [d]efendant, "[n]ow, I told
          you, you got a sex assault charge outta
          Trenton.   They signed a complain[t] on you
          yesterday . . . ."   It is clear [from] this
          exchange the Detective was not trying to hide
          his intention in going to the hospital to
          speak with [d]efendant.

The judge entered a memorializing order, and this appeal followed.

     On appeal, defendant argues that "[a]n overall assessment of

the uncontested facts that [defendant] was recovering from life-

threatening injuries, was handcuffed to his bed, did not feel

well, was semi-literate, and suffered from learning and cognitive

difficulties" showed that "the State could not prove, beyond a

reasonable doubt, that [defendant] voluntarily and intelligently

waived his Miranda rights."     Further, according to defendant,

"[s]ince [his] physical and mental limitations undermined the

voluntariness of the Miranda waiver, they inevitably undermined

the voluntariness of his statement," and "[t]he trial court ignored

the fact that the interrogation pertained to dual investigations."

We disagree.

                               14                           A-3881-16T1
      When reviewing a trial court's denial of a motion to suppress

a defendant's statement, we must "engage in a 'searching and

critical' review of the record."          State v. Maltese, 222 N.J. 525,

543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)),

cert. denied, ___ U.S. ___, 136 S. Ct. 1187 (2016).              We defer to

the   trial   court's    findings    supported     by   sufficient   credible

evidence in the record, particularly when they are grounded in the

judge's feel of the case and ability to assess the witnesses'

demeanor and credibility.           State v. Robinson, 200 N.J. 1, 15

(2009); State v. Elders, 192 N.J. 224, 243-44 (2007).

      This standard of review applies even where the motion court's

"factfindings    [are]     based    solely    on    video   or   documentary

evidence," such as recordings of custodial interrogations by the

police.   State v. S.S., 229 N.J. 360, 379 (2017).               We will not

reverse a motion court's findings of fact based on its review of

a recording of a custodial interrogation unless the findings are

clearly erroneous or mistaken.         Id. at 380.       However, we review

issues of law de novo.       Ibid.; State v. Shaw, 213 N.J. 398, 411

(2012).

      At a hearing challenging the admission of statements made

during a custodial interrogation, "the State must prove beyond a

reasonable doubt that a defendant's confession was voluntary and

was not made because the defendant's will was overborne."               State

                                     15                               A-3881-16T1
v. Knight, 183 N.J. 449, 462 (2005).                    The State must also prove

"the defendant was advised of his rights and knowingly, voluntarily

and intelligently waived them."                State v. W.B., 205 N.J. 588, 602

n.3 (2011).        Further, the determination of whether the State has

satisfied its burden of proving beyond a reasonable doubt a

defendant's statement was voluntary requires "a court to assess

'the     totality       of     the    circumstances,           including        both    the

characteristics         of     the    defendant        and     the     nature     of    the

interrogation.'"             Hreha,    217    N.J.     at    383   (quoting     State    v.

Galloway, 133 N.J. 631, 654 (1993)).

       We     must     determine       "whether,        under      the    totality       of

circumstances, the confession is 'the product of an essentially

free and unconstrained choice by its maker' or whether 'his will

has    been    overborne       and    his    capacity        for     self-determination

critically impaired.'"           State v. Pillar, 359 N.J. Super. 249, 271

(App. Div. 2003) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

225-26 (1973)).         The "factors relevant to that analysis include

'the suspect's age, education and intelligence, advice concerning

constitutional         rights,        length      of    detention,        whether       the

questioning was repeated and prolonged in nature, and whether

physical punishment and mental exhaustion were involved.'"                         Hreha,

217 N.J. at 383 (quoting Galloway, 133 N.J. at 654).                            The court

should      also     consider    defendant's         prior     encounters       with    law

                                             16                                   A-3881-16T1
enforcement and the period of time that elapsed between the

administration of Miranda warnings and the defendant's confession.

Ibid.

     Applying    these   principles        and   deferring    to   the   judge's

factual findings, which are amply supported by the record, we are

satisfied that Judge Billmeier's denial of defendant's motion to

suppress his statement was proper. Based on the judge's assessment

of   the    totality      of    the     circumstances,        including       the

characteristics of defendant and the nature of the interrogation,

the judge correctly determined that the State satisfied its burden

of proving beyond a reasonable doubt that defendant was advised

of his rights, knowingly, voluntarily and intelligently waived his

rights, and gave a voluntary statement.              We reject defendant's

contrary   arguments     and   affirm      substantially     for   the   reasons

expressed in Judge Billmeier's well-reasoned written decision.

     Affirmed.




                                      17                                 A-3881-16T1
