State v. Jang

• Decision Date: 28 March 2003
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jshik JANG, Defendant-Appellant.
• Court: New Jersey Superior Court

819 A.2d 9

359 N.J. Super. 85

STATE of New Jersey, Plaintiff-Respondent, v. Jshik JANG, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted March 5, 2003.

Decided March 28, 2003.

Yvonne Smith Segars, Public Defender, for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Acting Attorney General, for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

Before Judges CONLEY, CARCHMAN and PARRILLO. The opinion of the court was delivered by CARCHMAN, J.A.D

Following an unsuccessful motion to suppress his confession and then a jury trial, defendant Jshik Jang, a South Korean national and illegal alien, was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2); first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a (1), (2); first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree armed burglary, N.J.S.A. 2C:18-2; two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, -4d; and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4a. He was sentenced to an aggregate term of life in prison with a forty-year period of parole ineligibility. The dominant issue on this appeal is whether a conviction may be overturned for failure of the State to comply with the provisions of the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, art. 36, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, (VCCR). We conclude that absent a showing of prejudice, a failure to comply with the provisions of the VCCR will not result in a reversal of a conviction.

We address the issue in the context of these facts. In the late evening of January 4, 1995, defendant went to the home of Michael Suh with Jin Sig Choi and another individual identified only as "Mr. Lee" for the purpose of "get[ting] some money" from Suh, a successful businessman known to possess large sums of cash. When Suh pulled into his garage at approximately 11:30 p.m., he was confronted by a man wearing a ski mask and standing next to Suh's wife's car. In an effort to warn his wife, who with her mother and two children was in the home, Suh sounded his horn. Suh, through his rear-view mirror, then observed another masked individual walking towards the driver's window. This second masked man aimed a gun at Suh and pulled the trigger twice, but the gun did not fire. Suh shifted his car into reverse, striking the garage door, and proceeded back down the driveway; the gunman followed him. Mrs. Suh entered the garage from the house and was tackled by the other masked man, who then stabbed her eleven times, killing her.

None of the perpetrators were apprehended at the scene, but investigators recovered the gun used in the robbery near the Suh home. The bloody knife used to stab Mrs. Suh was recovered nearby as well.

Defendant was implicated in the crime as a result of a trace of the serial number on the recovered gun that revealed a chain of sales eventually ending with a sale of the weapon to Choi and defendant. When the police also determined that Choi owned a white and silver Chevrolet Blazer, the vehicle observed at the scene of the murder, they contacted the television show "America's Most Wanted" to conduct a profile of the case. The airing of that show resulted in a call from Tacoma, Washington advising of defendant's presence there, and eventually led to the surrender of defendant in Missoula, Montana.

Detective Sergeant Richard Cary of the Paramus Police Department, Detective Mark Bendul and Lieutenant Joseph Hornyak of the Bergen County Prosecutor's Office traveled to Tacoma, Washington and then to Montana where they interviewed defendant with U.S. Immigration and Naturalization Service (INS) Special Agent Jake Stavlo in the Jefferson County Jail in Bolder, Montana. The INS's involvement was prompted by the issuance of a complaint and arrest warrant charging defendant as an illegal alien in possession of a firearm. Prior to this interview, defendant was informed that the South Korean Consulate would be advised of his arrest and custody the next day, and Special Agent Stavlo did contact the South Korean Consulate the following day. Defendant was also advised of his Miranda¹ rights in both English and Korean. He read the Miranda card in Korean, wrote "yes" next to each of the Miranda rights, and signed his name in English in the waiver portion of the Miranda form. Special Agent Stavlo questioned defendant in English, and Detective Bendul, a Korean by birth, interpreted the questions into Korean.

Defendant minimized his involvement in the murder. He admitted that he bought the gun as well as the knife used to kill Mrs. Suh, and had purchased and placed in Choi's Chevrolet Blazer the ski masks used in the burglary, but he claimed that he did not know about the burglary and stayed in the back seat of the vehicle the entire time as he had a "bad back." He denied driving the Chevrolet Blazer, and asserted that Choi operated the vehicle, as defendant remained in the back seat. Notably, defendant had no reply to the investigators' perhaps rhetorical question: "If you had a bad back and you couldn't participate in this attempted robbery, why would Choi and Lee even think about bringing you there?"

Later in the morning of May 4, 1996, defendant was transported to the INS office in Helena, Montana to undergo processing for the federal immigration charge, and Special Agent Stavlo and Detective Bendul again met with defendant, informing him of his Miranda rights for a second time. Defendant subsequently made a formal statement while at the INS office, terminating the interview by stating: "I don't want to talk anymore. Take me to jail."

Defendant moved to suppress his confession claiming that it was coerced. Following a Miranda hearing, the judge rejected defendant's claim and found:

[D]efendant freely and voluntarily waived his right to counsel. He freely and voluntarily gave statements to the police. He knew what he was doing. He wanted to make the statements. He voluntarily turned himself in to the police. He was clearly informed of his rights, of his Miranda warnings, on more than one occasion, and therefore, the motion to dismiss for failure to give appropriate Miranda warnings is dismissed.

Defendant also claimed that his rights under the VCCR were violated. The judge rejected that claim, as well, and following a trial, defendant was convicted and sentenced. He now appeals.

On appeal, defendant raises the following arguments.

POINT I

BECAUSE OF THE STATE'S FAILURE TO ADVISE DEFENDANT, A SOUTH KOREAN NATIONAL, OF HIS OWN RIGHT UNDER THE VIENNA CONVENTION TO CONTACT THE SOUTH KOREAN CONSULATE FOR ADVICE AND ASSISTANCE AT THE TIME OF HIS ARREST, DEFENDANT'S SUBSEQUENT STATEMENTS TO THE POLICE WERE OBTAINED IN VIOLATION OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

IMPROPER SUMMATION COMMENTS, DESIGNED TO INFLAME THE JURY WITH AN UNFOUNDED CLAIM THAT THE VICTIM GAVE HER LIFE TO SAVE THE REST OF HER FAMILY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

POINT III

THE IMPOSITION OF CONSECUTIVE TERMS FOR ATTEMPTED MURDER AND MURDER WAS MANIFESTLY EXCESSIVE.

POINT IV

THE CONVICTION FOR ROBBERY SHOULD HAVE BEEN MERGED. (Not Raised Below)

We first address the issue of the alleged failure of the State to comply with the VCCR. The VCCR is a binding multi-lateral treaty to which over 160 nations are parties. Rebecca E. Woodman, International Miranda? Article 36 of the Vienna Convention on Consular Relations, 70 J. Kan. B. Ass'n 41, 42 (2001). Among the other purposes and objectives of the treaty, it is intended "to protect foreign nationals, particularly those detained or in custody." Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565, 611 (1997). The VCCR is a self-executing treaty, meaning that it is the equivalent of an act of Congress. Woodman, supra, 70 J. Kan. B. Ass'n at 42 (citing Kadish, supra, 18 Mich. J. Int'l L. at 613 n. 147). Both the Republic of Korea and the United States are signatories of the VCCR.

The operative provision of the VCCR that is implicated by this case is Article 36, which provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national...