STATE OF NEW JERSEY VS. LATIMAR BYRDSELLÂ (07-02-0162, CUMBERLAND COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-5356-13T1

Background

Victim: a 3-year-old girl died July 10, 2006; autopsy found smothering as cause of death and recent sexual injuries. Defendant (the child’s mother’s fiancé) was alone caring for the child the day of death.
Defendant was interviewed by detectives the next day; portions from 4:00–8:58 p.m. were audio-recorded, but later, more incriminating interrogation portions at Vineland station were not recorded. Defendant signed a typed statement summarizing admissions.
Medical examiner found asphyxia by smothering and rectal/vaginal injuries sustained within 24 hours of death. DNA testing was noncontributory.
Jury convicted defendant of aggravated manslaughter (lesser included), felony murder based on sexual assault of a child, and first‑degree aggravated sexual assault; the court merged felony murder with sexual assault but not with aggravated manslaughter.
Sentenced to life without parole on statutory felony‑murder enhancement; concurrent 27 years for aggravated manslaughter (later held to require merger). Defendant appealed suppression ruling, R. 3:17 recording instruction, jury charge content, and sentencing/merger issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant invoked right to counsel (limited to polygraph) so police had to cease questioning	State: defendant’s statements showed only a reservation to request counsel later for a polygraph; no clear invocation, so questioning could continue	Byrdsell: he said he would request a lawyer if it came to the polygraph; that was an invocation for a limited purpose which police failed to scrupulously honor	Court: No invocation. Statement was an intent to request counsel later; officers clarified and re‑Mirandized and defendant waived, so no Edwards bar applied
Whether unrecorded custodial statements were voluntary and admissible under Miranda and R.3:17	State: judge credited officers’ testimony; failure to record was a Rule 3:17 violation but is a factor to weigh, not automatic suppression; voluntariness proved beyond reasonable doubt	Byrdsell: prolonged, emotional interrogation, fatigue, appeals to religion, misrepresentations and three unrecorded hours overbore will; recordation failure required suppression or heavy weight against admissibility	Court: Found Rule 3:17 violation but gave it limited weight because officer testimony was credible; overall voluntariness sustained and suppression denial affirmed
Whether trial court’s R.3:17 jury instruction was inadequate because it omitted guidance tying recordation failure to the specific trial evidence	Byrdsell: instruction omitted reference to trial evidence/factors jurors should consider about the officers’ conduct and conditions and was raised for first time on appeal	State: court used Model Cautionary Charge and defense had opportunity at charge conference and in closing argument; no timely objection was made	Court: No plain error. Instruction matched model charge; omission not prejudicial given defense argument, silence at charge conference, and request requirement in R.3:17(e)
Sentencing/merger: whether aggravated manslaughter should merge into felony murder and whether judgment entry included counts not decided	State: imposed mandated life for felony murder and concurrent term for aggravated manslaughter; merged felony murder with sexual assault but not manslaughter	Byrdsell: aggravated manslaughter must merge into felony murder (single homicide) and judgment misstates counts	Court: Aggravated manslaughter must merge into felony murder; remanded to amend judgment, vacate the manslaughter sentence, dismiss the redundant count, and resentence limited to effects of merger

Key Cases Cited

State v. S.S., 229 N.J. 360 (2017) (standard of review: deference to trial court credibility findings)
State v. Gerald, 113 N.J. 40 (1988) (two‑step analysis for alleged invocation of counsel; equivocal requests require clarification)
State v. Alston, 204 N.J. 614 (2011) (ambiguous requests for counsel require police clarification)
State v. Cook, 179 N.J. 533 (2004) (voluntariness standard and origin of court rule on electronic recording of custodial interrogations)
Connecticut v. Barrett, 479 U.S. 523 (1987) (limited‑purpose request for counsel construed as clear invocation for that purpose)
Edwards v. Arizona, 451 U.S. 477 (1981) (post‑invocation interrogation rule barring further custodial questioning absent counsel)
State v. Pantusco, 330 N.J. Super. 424 (App. Div. 2000) (two homicide convictions for one victim cannot both stand; merger required)