                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2865-15T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN R. DONALDSON,

     Defendant-Appellant.
___________________________

                    Argued December 12, 2018 – Decided April 1, 2019

                    Before Judges Accurso, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 13-10-
                    1344.

                    James K. Smith, Jr., Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Joshua D. Sanders, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    Alexis R. Agre, Assistant Prosecutor, argued the cause
                    for respondent (Scott A. Coffina, Burlington County
                    Prosecutor, attorney; Alexis R. Agre, of counsel and on
                    the brief).
PER CURIAM

      Defendant Steven R. Donaldson appeals following his jury-trial

conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a

lesser included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), in

connection with the death of a one-year-old child who was in his care when she

suffered blunt force head trauma, which caused her death. 1 On appeal, he

argues:

            POINT I

            [DEFENDANT] REPEATEDLY INVOKED HIS
            RIGHT TO REMAIN SILENT, THEREFORE THE
            STATEMENTS    MADE      DURING     HIS
            INTERROGATION AFTER THESE REPEATED
            INVOCATIONS   SHOULD     HAVE    BEEN
            SUPPRESSED.

            POINT II

            DEFENSE          COUNSEL           WAS
            UNCONSTITUTIONALLY    INEFFECTIVE    BY
            FAILING TO PROPERLY CROSS-EXAMINE A
            STATE'S EXPERT USING RELEVANT AND
            MATERIAL EVIDENCE THAT THAT EXPERT
            HAD PREVIOUSLY ERRED BY READING A SLIDE
            UPSIDE DOWN IN A MATTER WHERE THE


1
   In his merits brief, defendant states he did not dispute the cause of death at
trial, only the manner of death.

                                                                         A-2865-15T4
                                       2
             INTERROGATION OF VARIOUS SLIDES WAS
             CENTRAL TO THE CASE.

             POINT III

             [DEFENDANT'S] SENTENCE IS EXCESSIVE AND
             MUST BE REDUCED.

We are unpersuaded by any of these arguments and affirm.

       Defendant's challenge to the trial court's partial denial of his motion to

suppress the statement he made to police is based on his invocation of the right

to remain silent. The trial court summarized defendant's argument: detectives

interrogating defendant failed to "scrupulously honor his constitutional rights

and failed to [re-Mirandize2] him before continuing their interrogation" after,

"on three occasions he invoked his Miranda rights" by telling the detectives he

had "nothing to say," and twice "referenced calling his attorney."

       After reviewing the entire video-recorded statement and a transcription of

the audio portion, the court concluded, in "the context of the line of questioning

and considering the totality of the circumstances[,] defendant made no request,

not even an ambiguous one, to terminate questioning or remain silent, until the

end of the interview." The trial court noted that defendant first uttered an

invocation after more than two-and-a-half hours of questioning. The court found


2
    See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-2865-15T4
                                        3
defendant's words, in context, were "nothing more than an affirmation that he

[had] told the police everything, that he was hiding nothing from them. Even

after saying he had 'nothing more to say,' he continued to answer the detectives'

questions." The court continued:

              Although detectives were under no Hartley[3] obligation
              to remind defendant of his Miranda rights, they
              nonetheless did so, the defendant responding, "We can
              continue talking, but I have nothing to say." That
              statement alone establishes the defendant himself did
              not equate "I have nothing to say" with the invocation
              of his right to remain silent. It clearly meant that he
              was willing to answer question[s] but had nothing to
              add to his story.

The court did suppress "the very few questions" that followed defendant's

statement after he learned the child died: "I have nothing to say. [O]therwise

then I . . . I guess I'll bring my attorney in to speak with you."

        Our standard of review of a trial court's decision on a motion to suppress

requires our deference to the court's factual findings so long as they are

"supported by sufficient credible evidence in the record." State v. Gamble, 218

N.J. 412, 424 (2014). The deferential standard applies to factual findings based

on a video-recorded statement. State v. S.S., 229 N.J. 360, 379-81 (2017). In



3
    State v. Hartley, 103 N.J. 252 (1986).


                                                                          A-2865-15T4
                                         4
contrast to the deference we show to trial courts as factfinders, "the task of

appellate courts generally is limited to reviewing issues of law. Because legal

issues do not implicate the fact-finding expertise of the trial courts, appellate

courts construe the Constitution, statutes, and common law 'de novo — with

fresh eyes . . . .'" Id. at 380 (quoting State v. Morrison, 227 N.J. 295, 308

(2016)). Reviewing the record evidence, we agree with the trial court that, in

the context of the entire statement, defendant did not invoke his right to remain

silent.

          We recognize if, during an interrogation, a person makes "a request,

'however ambiguous,' to terminate questioning or to have counsel present[,] [it]

must be diligently honored." Hartley, 103 N.J. at 263 (quoting State v. Kennedy,

97 N.J. 278, 288 (1984)). "Any words or conduct that reasonably appear to be

inconsistent with defendant's willingness to discuss his case . . . are tantamount

to an invocation of the privilege against self-incrimination." State v. Bey (Bey

II), 112 N.J. 123, 136 (1988). If the police are unsure if a suspect invoked the

right, they must either "(1) terminate the interrogation or (2) ask only those

questions necessary to clarify whether the defendant intended to invoke his [or

her] right to silence." S.S., 229 N.J. at 383.




                                                                          A-2865-15T4
                                         5
      In determining whether the right to remain silent was invoked, a court

must analyze "the totality of the circumstances, including consideration of the

suspect's words and conduct." State v. Maltese, 222 N.J. 525, 545 (2015). "The

. . . statement [must be] evaluated in the full context in which [it was] made."

Ibid. "Any words or conduct that reasonably appear to be inconsistent with

defendant's willingness to discuss his case with the police, however, are

tantamount to an invocation of the privilege against self-incrimination." S.S.,

229 N.J. at 382 (quoting Bey II, 112 N.J. at 136).

      Our Supreme Court has determined that words like those used by

defendant were sufficient to invoke the privilege against self-incrimination. See

Id. at 386 (holding suspect invoked right to silence when he stated "No, that's

all I got to say. That's it"); State v. Johnson, 120 N.J. 263, 281 (1990) ("a suspect

who has 'nothing else to say' . . . has asserted the right to remain silent . . . ."

(citation omitted)); State v. Bey (Bey I), 112 N.J. 45, 64 (1988) (holding

privilege invoked where suspect told police "he would have nothing to say"). In

light of the questions to which defendant was responding when he spoke similar

phrases, we cannot equate the statements made by the defendants in those cases

with defendant's statements here.




                                                                             A-2865-15T4
                                         6
       Defendant's first said, "I told you everything," after hours of questioning

about what occurred while defendant was watching the child, and the detective's

lengthy discourse on the importance of truthfulness. A colloquy took place

thereafter when the detective finally said, "So tell me what happened. Tell . . .

tell me . . . ."

               [Defendant]: I told you everything.

              [Detective]: You . . . you . . . you didn't.

              A: I have nothing else to say.

              Q: Steve[,] you didn't tell me everything that happened.

              A: I have nothing else to tell you.

              Q: Well, tell me how this injury got to the baby.

              A: I have nothing else to say.

              Q: You . . . you don't know how this injury got to the baby?

              A: I told you everything.

              Q: Well, let's . . . and let me ask you this. Why don't you
              wanna tell me?

              A: It's not that I don't wanna tell you. I already told you
              everything.

       These statements support the trial court's finding that defendant's

assertions that he had nothing more to say were not an invocation of his right to


                                                                            A-2865-15T4
                                           7
remain silent but, rather, an indication that he "had nothing to add to his story."

The lengthy conversation that followed this colloquy further evidences that

defendant was not invoking his right to remain silent. During that conversation,

the detective challenged defendant:

            With all your changes of your stories, with all your lies
            to me tonight I have a hard time believing that that's the
            entire story. And as [a] matter of fact[,] I'm going to go
            even further. I know that's not the entire story. Cause
            I now have a pretty good knowledge of what actually
            happened there tonight. I just need you to tell. You
            need to get out in front of this and we need to move on
            . . . . And . . . and we . . . and after we come to this truth
            ....

Defendant interjected, "That's everything I know." And after the detective

replied, "we don't need to talk anymore," defendant reiterated, "that's everything

I know of what happened sir." Defendant was not cutting off the conversation;

he was telling the detective that he had been telling the truth and that he had

nothing more to add to "the entire story."

      After another lengthy exchange during which defendant stated, "I mean

otherwise you can . . . talk to my attorney," the detective asked, "Is that your

wishes?" Defendant replied, "No, not at all." The detective later followed up:

            Q: Okay, alright. Look, we started talking and you
            made the comment you can talk to my attorney to get
            the answers. And then I asked you is that what you
            want or do you want to talk to me? You said no sir I

                                                                             A-2865-15T4
                                          8
              wanna talk to you, but we need to clear that up.
              Remember those rights that I read you? You have those
              rights. I . . . I . . . you know, I'll go over em' again if
              you want me to, but one of those rights is you can have
              an attorney here present while I'm talking to you. So,
              based on that conversation that we just had[,] do you
              wanna talk to me now or do you wanna have an attorney
              here while you're talking to me? It's . . . it's your rights.
              We need to clear it up.

After defendant cut off a re-reading of Miranda warnings, confirming he knew

them,4 the detective started another discussion, asking:

              [Detective]: So, I'm asking you. Do you want to have
              your attorney here now or do you want to continue
              talking to me?

              [Defendant]: We can continue talking, but I have
              nothing else to say.

              Q: Okay. I understand that. And you're saying I have
              nothing else to say, because you feel there's no more
              information that you can provide . . . [n]ot that you don't
              wanna talk to me. Do you still wanna talk to me?

              A: I would . . . I'd gladly give you more information,
              but there's nothing else to tell you.

              Q: But, you understand that the more I talk to you the
              more information I get, because if I stop this when we
              first started talking. If I let you tell your story you know
              how much information I wouldn't have gotten? So, let's
              just clear this up. Do you or don't you wanna talk to me
              right now without talking . . . .


4
    Defendant does not contend he invoked his right to counsel.
                                                                              A-2865-15T4
                                           9
           A: How . . . much longer is this gonna be?

           Q: I just need to clear up this . . . this last bit of
           information. I don't know how long that's gonna take.
           I just need to clear this last bit of information up, but I
           need to clarify. Do you or don't you wanna have an
           attorney here?

           A: How much . . . how much longer?

           Q: I can't tell you that, but I can tell you once I clear
           up this . . .

           A: Well, can I get out here in a half hour or . . .

           Q: Possibly. I . . . can't give you a time frame, but the
           quicker we get to the truth the quicker I can get you out
           of here.

           A: Alright well, go ahead.

           Q: Again, do you or don't you want an attorney here
           while we're talking and do you still wanna talk to me?

           A: Right now I'll still talk, but . . .

           Q: Okay. That's fine and you know you have that right.
           One of those rights is that any time you can tell me that.
           Okay?

           A: Alright.

     In further dialogue with the detective, the detective continued to tell

defendant he was lying and defendant maintained his innocence. Defendant said




                                                                         A-2865-15T4
                                       10
he was unaware if "a mistake or accident happened" and that "[n]othing was

done on purpose," concluding, "[t]hat's all I can . . . say you guys, I'm sorry."

      After defendant was informed the child had died, this final colloquy took

place before defendant invoked his right to counsel:

            [Detective]: The truth is out there. You can hide
            behind it you have to get out in front of it. And as soon
            as you tell the truth the world changes for you and
            you're out in front of everything.

            [Defendant]: I have nothing else to say.

            Q: Why is that?

            A: I already explained everything.

            Q: You didn't explain what happened to the baby.
            That's the only thing.

            A: I don't know what happened.

            Q: The baby died. Something happened significantly
            in that apartment there tonight.

            A: I don't know what happened.

            Q: Look at me. Something happened.

             A: I don't know what happened.

      The foregoing recital from the record clearly supports the trial court's

finding that defendant never, even ambiguously, invoked his right to remain

silent. The detective's questions give context to the selective passages defendant

                                                                           A-2865-15T4
                                       11
contends are proof that he invoked his right.        Under the totality of the

circumstances, as the trial court found, defendant did no more than inform the

detectives that he was telling them all he knew – not that he did not want to

speak with them – clarifying many times that the conversation could continue.

The motion to suppress defendant's statement was correctly decided.

      Defendant also argues his trial counsel was ineffective because he failed

to properly cross-examine the State's expert in neuropathology, contending the

expert's credibility "was central in this matter," and that counsel failed to

question her about an error she made in an unrelated case when the expert read

"slides upside down," thereby "improperly shield[ing] [the expert] from

meaningful cross-examination as to her professional competency."

      During trial, defense counsel attempted to question the expert about her

role as the government's expert in an Illinois case. At a sidebar conference that

followed the State's objection to that line of questioning, defense counsel

explained why he wished to question the expert: because in a federal habeas

corpus proceeding, the judge, acting as a factfinder, found the expert's opinions

– made after she "viewed slides in a case involving a head injury to a child, the

same type of thing that we have here" – "were erroneous because she had read

the slides upside[-]down." We note the federal judge's exact finding was that


                                                                         A-2865-15T4
                                      12
the expert was "completely unbelievable and unreliable. Her own testimony and

later questioning . . . showed that she had viewed the autopsy photo of the brain

sections upside-down and had drawn erroneous and unwarranted conclusions

from this . . . ." Del Prete v. Thompson, 10 F. Supp. 3d 907, 946 (N.D. Ill.

2014). The trial court in this case sustained the objection, finding that the Del

Prete case was "unrelated [and] not contrary to her testimony here. All it tells

this [c]ourt is that in the opinion of a fact finder, who had to make choices, he

found she wasn't reliable."

      Defendant agrees that the trial court "properly precluded defense counsel

from cross-examining the State's [expert] in relation to a prior judicial finding,

from an unrelated case." He contends that trial counsel should have elicited that

the expert "had previously read . . . autopsy slides upside down when

formulating her expert opinion" because that information was "relevant to a

proper assessment of her credibility in this case where the interpretation of slides

was hotly contested." Instead, defendant's trial counsel informed the judge, "I'm

not going to ask any other questions," and the expert was excused.

      Defendant's ineffective-assistance-of-counsel argument was not raised to

the trial court. The reason for counsel's decision to refrain from as king the

expert about her averred error was never established. Nor was it developed


                                                                            A-2865-15T4
                                        13
whether evidence of the expert's error would be admissible. Indeed, a review of

the federal judge's decision reveals that the expert read autopsy photos – not

slides – upside down and the expert claimed microscopic slides "had been

mislabeled." Del Prete, 10 F. Supp. 3d at 942. We cannot ascertain from the

record if the circumstances of any error committed by the expert in the Illinois

case was sufficiently relevant and material to allow for the now-proposed cross

examination.

      As such, we will not entertain defendant's ineffective assistance claim on

such an undeveloped record. See State v. Dixon, 125 N.J. 223, 261-62 (1991)

(refusing to decide an ineffective assistance claim on direct appeal where record

was "inadequate to disclose what reasons of tactic and strategy motivated

counsel"); see also State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have

expressed a general policy against entertaining ineffective-assistance-of-counsel

claims on direct appeal because such claims involve allegations and evidence

that lie outside the trial record.").

      As a final point, defendant contends his twenty-year sentence – the

midrange of an ordinary term for aggravated manslaughter, N.J.S.A. 2C:11-4(c)

– was excessive. The trial court, concluding the aggravating factors outweighed

the non-existent mitigating factors, found aggravating factors:             two,


                                                                         A-2865-15T4
                                        14
vulnerability of the victim; three, risk that defendant will reoffend; and ni ne,

need to deter, N.J.S.A. 2C:44-1(a)(2), (3), (9), set forth reasons for each finding.

Defendant does not dispute the trial court's findings regarding the statutory

factors. He simply argues, with no elaboration or explanation except to mention

this is defendant's first indictable conviction, that defendant could be adequately

punished with a lesser sentence. We determine defendant's argument is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2); see

State v. Case, 220 N.J. 49, 65 (2014) ("When the aggravating and mitigating

factors are identified, supported by competent, credible evidence in the record,

and properly balanced, [an appellate court] must affirm the sentence and not

second-guess the sentencing court, provided that the sentence does not 'shock

the judicial conscience.'" (citation omitted) (quoting State v. Roth, 95 N.J. 334,

365 (1984))).

      Affirmed.




                                                                            A-2865-15T4
                                        15
