On Appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
By leave granted, the State appeals from an order suppressing an oral statement given by defendant Michael Trapp,*fn1 also known as Robert W. Jordan (Trapp). We reverse.
On January 29, 1988, Lt. Robert Gazaway (Gazaway) of the Hillsboro Township Police Department was investigating an armed robbery, burglary and kidnapping which occurred on January 25, 1988 in Hillsboro. On January 28, Gazaway participated in the arrest of defendant Trap in New York City. While walking to the Fifth Precinct, Trapp told Gazaway that he had a knife in his back pocket which was later identified as belonging to the victim of the charged crimes.*fn2 When they arrived at the
precinct, Gazaway administered Miranda*fn3 warnings to Trapp which Trapp acknowledged he understood. In response to Gazaway's question whether Trapp wished to talk to him, Trapp said he did not. Approximately one minute later, however, Trapp said to Gazaway, "How did you find out where I would be?" or words to that effect. Trapp also asked what happened to "the other guy"*fn4 and stated he was willing to talk to Gazaway as long as he did not have to implicate anyone else. The officer testified to the prestatement events as follows:
Q. All right. Now, after you read those rights to him, did you continue to speak with him?
A. No, I didn't. For -- for approximately a minute I did not talk to him. I was taking care of some other stuff in the room. And then he said to me, 'How did you find out where I would be?' [or] words to that effect. And he also asked me what happened to the other guy. I explained to him that since he told me he didn't want to talk to me, I could not answer any question or talk about the incident.
Q. Did you tell him that you couldn't speak with him unless he voluntarily waived his rights?
A. Yes. Reading from my report I told him, I advised Mr. Trapp that since he had originally told me he did not want to discuss anything with me, I could not talk to him in regard to this investigation unless he voluntarily requested that I talk to him. He stated that he was willing to talk to me about his part in the robberies as long as he was not forced to implicate anyone else involved. He told me he was facing many years in prison anyway so he did not care about talking about what he did during the robberies.
I then went into the adjoining office and asked Detective Agans to come into the room with me and Mr. Trapp. I then advised Detective Agans in the presence of Mr. Trapp that I had originally advised Michael Trapp of his constitutional rights, and that he acknowledged that he understood his rights, but did not want to talk to me about the crimes under investigation. A minute or two later he then voluntarily requested to talk to me as long as I did not make him implicate any other people who may have been involved in the robberies with him. Mr. Trapp then confirmed to Detective Agans that this was correct and that he did wish to talk to me at this time. And Detective Agans then left the room.
Q. Now, after Detective Agans left the room did you question this defendant Michael Trapp about his involvement in the Hillsboro armed robbery, burglary kidnapping?
It was the oral statement which followed that was suppressed.
After a Miranda hearing at which Gazaway testified, the motion judge called the attention of counsel to State v. Hartley, 103 N.J. 252 (1986). On the following day the judge heard full oral argument and on October 28, 1988 prepared a written opinion. In the opening paragraph of his opinion, the judge said:
Because this court finds beyond a reasonable doubt that Mr. Trapp knowingly, intelligently and voluntarily waived the right to remain silent, his motion raises the issue of whether there is an exception to the holding in Hartley where the defendant resumes communications with the police after having first asserted the right to remain silent.
The judge then concluded:
The State argues that by resuming communications with the police, the defendant waived the previously asserted right to remain silent. That is not the issue. The issue is whether the State 'scrupulously honored' the defendant's previously asserted right to remain silent which is a distinct concept from the issue of waiver. State v. Hartley, 103 N.J. 252, 261 (1986). Before this court can even consider the waiver issue, it must first determine whether the 'scrupulously honored' requirement enunciated by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) was satisfied. In Hartley our Supreme Court held that the 'scrupulously honored' requirement is not satisfied unless fresh Miranda warnings are given to the suspect. Hartley, 103 N.J. at 256 and 278-279. The court created a bright-line, inflexible requirement that fresh Miranda must be given after a suspect has asserted the right to remain silent in order to satisfy the 'scrupulously honored' requirement. Hartley, 103 N.J. at 267-268. Although Hartley involved a situation in which the police resumed ...