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State v. Malik-Ismail

July 16, 1996

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JALEEL ABDUL MALIK-ISMAIL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication July 16, 1996.

Before Judges Landau, Kleiner and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by HUMPHREYS, J.A.D.

Defendant and co-defendant Walker were charged with first degree murder and related offenses. Pursuant to a plea agreement, the defendant pled guilty to a conspiracy to commit murder. The defendant gave a statement to the prosecutor and agreed to testify truthfully at the co-defendant's trial. The prosecutor later learned that the statement of the defendant was false and the defendant intended to lie at the co-defendant's trial. With the permission of the court, the State withdrew from the plea agreement. Thereafter, the Judge suppressed post-plea statements given by the defendant to the prosecutor. The Judge held that the statements were inadmissible because defendant had not been advised of his constitutional right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 320, 16 L. Ed. 2d 694 (1965). The Judge also suppressed statements of a witness whose existence was learned as a result of the defendant's post plea statements. The Judge reasoned that the witness's statement should be suppressed because it was the "poisonous fruit" of the defendant's "non-mirandized statements."

We granted the State's motion for leave to appeal. We reverse as to some of the statements suppressed.

I

The defendant pled guilty on June 14, 1994 to a conspiracy to commit a murder. The State agreed to recommend a sentence of seven years with no parole ineligibility. The first degree murder charge against the defendant would be dismissed. The defendant agreed to testify truthfully at the trial of the co-defendant. The defendant was also required to speak to the trial prosecutor to prepare for the defendant's testimony as a witness at the co-defendant's trial. The State also asserts that, although not stated in the plea form, the State agreed to advise the Parole Board at the time the defendant became eligible for parole as to the nature and extent of the defendant's cooperation in the trial of the co-defendant.

When the defendant entered his plea of guilty, he was placed under oath and questioned as to the factual basis for his plea. He said that he and the co-defendant agreed that the co-defendant would kill the victim. The defendant and co-defendant went to the house where the victim was staying. The defendant's role was to induce the victim to come onto the front porch. The victim did so and the co-defendant shot him in the head. The defendant said he understood that his responsibility in the co-defendant's case was to testify truthfully.

After the plea of guilty was entered, but on the same day, June 14th, the defendant gave a statement at the prosecutor's office in the presence of his attorney in which the defendant admitted planning and conspiring with the co-defendant to murder the victim. The defendant denied having a gun at the time of the murder.

The defendant was interviewed by the prosecutor's office on January 11 and 13, 1995 in preparation for his testimony at the trial of the co-defendant. The defendant's attorney waived his appearance at these interviews. No Miranda warnings were given during the interviews. At the interview on January 11, 1995, the defendant said that he had obtained a .38 caliber revolver after the murder for his own protection and that he had given the gun to a friend, Lamar Payne, the night before he turned himself in to the police.

On January 13, 1995, the investigator interviewed the defendant about the whereabouts of Lamar Payne. Later that day the investigator interviewed Lamar Payne's brother, Eric Payne. The investigator was told by Eric Payne that the defendant had come to him the night of the murder in a nervous state and asked him to dispose of a .38 caliber revolver; ten minutes later the defendant's brother came and took the gun back.

Ballistic test results were obtained by the prosecutor's office on January 13, 1995. The tests established that the victim was shot with a .38 caliber gun, probably a revolver.

On January 15, 1995, the defendant was interviewed by an assistant prosecutor and an investigator. The defendant was asked if he had a gun with him at the time of the murder. He admitted that he did have a .38 caliber revolver. He also admitted that at the co-defendant's trial, he would have testified falsely that he was unarmed at the time of the murder. The State then moved to withdraw from the plea agreement on the ground that the defendant had breached his obligation to provide truthful testimony at the trial. The court granted the motion and ordered separate trials of the defendant and the co-defendant. The Judge said in his opinion ...


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