On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal from a conviction for purposeful and knowing murder, the primary issue considered by the Court is the admissibility of statements by defendant, Thomahl Cook, to law enforcement officers. The statements, made during several periods of interrogation, were not recorded electronically.
The victim, fifteen-year-old Katrina Suhan, was found dead on Sunday, February 15, 1998, having been brutally beaten. Her body was found in a wooded lot behind a bowling alley in Old Bridge. She last had been seen around 12:30 a.m., Saturday, February 14, 1998, walking home alone from a South Amboy roller-skating rink where she had been skating with friends Friday night.
Law enforcement officials learned of Cook's possible link to the victim on February 16, 1998, through an acquaintance of defendant, who reported to the police her suspicion of Cook's involvement in the publicized murder. Cook had been known to go the roller rink and had been seen interacting with the Suhan there in the past. Cook had told his girlfriend, who was to be away for the weekend, that he was going to the rink with a friend Friday night. The day after the killing, Cook had cuts on one hand and swollen knuckles, and one arm appeared to be injured.
After hearing of the suspicions about Cook's involvement the day after the body was found, the police arrested Cook that evening on the basis of two outstanding municipal warrants and took him to police headquarters in Somerville for questioning about the murder.
Cook was interrogated during four sessions with the investigating authorities between 9:50 p.m. on February 16, 1998, and 8:00 p.m. on February 18, 1998, at times by one interrogator and at times by two. The third session was a polygraph examination. Before each session, the officers advised Cook of his Miranda rights and he agreed to speak to them.
On February 18, 1998, around mid-day, an attorney from the Office of the Public Defender called the MiddleseX County Prosecutor, whose detectives were involved in the interrogations. In response to questions from the attorney, the Prosecutor told him he did not think Cook was represented by the Public Defender because the municipal charges he was being held on during questioning were only disorderly persons offenses and that at that point he was not intending to charge Cook with the murder of Katrina Suhan. The Prosecutor agreed to call the Public Defender if he decided to charge defendant with the murder.
The information Cook gave his questioners about his activities and location during the evening of the murder varied from session to session, and ranged from exculpatory at the outset to increasingly inculpatory. At certain points in the questioning, Cook became emotional and his responses were extremely delayed. Ultimately, Cook confessed that he had killed Katrina Suhan after she had rejected his sexual advances. Although recording equipment was available during the interrogation, it was not used. According to the officers, during the nine-hour period of questioning on February 18, 1998, Cook was given meal, cigarette, and beverage breaks. They acknowledged that a statement normally would be taped; however, due to Cook's emotional state, the disjointed nature of his responses to questions, and repeated recanting or changing of his story, the officers decided it would be better to make a written report of the interrogation than to attempt an electronic recording.
Cook was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C: 11-3(a)(1) and -3(a)(2). Prior to trial the court considered motions regarding evidence to be presented. The court denied Cook's motion to introduce evidence of a local murder with some similarities to Katrina Suhan's that occurred a year later, while Cook was incarcerated.
After a Miranda hearing, the court ruled that the State could introduce at trial the statements Cook made during the three non-polygraph interrogation sessions. (The State did not seek to use the polygraph results.) The court found that Cook had received the required Miranda warnings, had understood them, and had knowingly and voluntarily waived his rights. The court concluded that Cook had made his statements voluntarily.
The jury convicted Cook of purposeful and knowing murder. He was sentenced to a term of sixty years of incarceration with a lengthy period of parole ineligibility. Cook appealed to the Appellate Division, which affirmed his conviction in an unpublished opinion, but remanded to the trial court to correct an error in the sentence imposed.
In affirming, the Appellate Division held that Cook's statements were admissible because the failure to record a suspect's statement electronically does not in and of itself constitute a violation of due process, but is a factor to be weighed in assessing the reliability of the statement. Also, the panel held that Cook's rights had not been violated by the failure of the prosecutor to inform him that a public defender had called while he was being questioned, noting that no attorney-client relationship existed at the time of the call. Finally, the court concluded the trial court had not erred in refusing to admit evidence of the later murder.
The Supreme Court granted Cook's petition for certification.
HELD: The statements Thomahl Cook made during questioning by police were properly admitted into evidence at his murder trial. Electronic recordation of a custodial interrogation is not required as a matter of due process under the New Jersey Constitution. Pursuant to the Supreme Court's supervisory authority over the criminal justice system, the Court will establish a committee to examine and make recommendations on the use of electronic audio and video recording of custodial interrogations.
1. There was no attorney-client relationship between Cook and the public defender at the time the public defender asked the prosecutor about defendant, so the authorities had no duty to inform him of the contact and there was no violation of Cook's privilege against self-incrimination. (pp. 16-20).
2. Only two state supreme courts have held that custodial interrogations must be recorded electronically, one as a matter of due process under the Alaska Constitution, the other, under the Supreme Court of Minnesota's supervisory powers over the criminal justice process. Two other states have enacted legislation requiring electronic recording of interrogations. There are perceived to be both benefits and drawbacks to recording custodial statements. Among the benefits are a more accurate picture of the circumstances surrounding the statement, an objective record of the statement, the enhanced ability of the trier of fact to assess credibility and weigh evidence, and a curtailed opportunity to make false allegations against police. Cited drawbacks to an absolute requirement of recording include the reluctance of some suspects to speak candidly on camera and the expense of equipment, transcription, and modifications to facilities. (pp. 20-30).
3. The imposition of a rule precluding the admissibility of a confession solely because it was not recorded electronically would have significant consequences. The interests of suspects and law enforcement must be balanced, and there is no uniformity in view or practice in how electronic recording procedures are or should be implemented. Because of the "fair-minded" disagreement in this area, the failure of the police to record Cook's statements electronically did not deprive him of due process and render his statements inadmissible. (pp. 31-33).
4. Recording custodial interrogations electronically would benefit those involved in the criminal justice process by addressing concerns in the areas of reliability and trustworthiness of confessions. Entities in the executive and legislative branches of government are exploring the subject of electronic recording of statements and interrogations.
The judiciary is responsible for the proper administration of criminal justice, and it is time for the Supreme Court to evaluate fully the protections electronic recordation provides criminal defendants and the State. The Court will establish a committee to study and make recommendations on the use of electronic recordation of custodial interrogations. (pp. 33-36).
5. The factors considered by the trial court at the suppression hearing and the standards applied by the court in evaluating Cook's condition support the court's conclusion that Cook has not shown that he was subject to substantial psychological pressure warranting suppression of his statements. In addition, the State met its burden of producing sufficient evidence to corroborate Cook's confession for purposes of letting the jury decide the confession's reliability. The verdict was not against the weight of the evidence. (pp.37-42).
6. There was no clear error of judgment or manifest denial of justice in the trial court's determination to bar Cook from introducing exculpatory evidence of a similar murder committed while Cook was incarcerated. (pp. 42-46).
Judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG has filed a separate dissenting opinion in which she states her view that pursuant to the Court's supervisory authority, the Court should declare now that all criminal interrogations must be recorded electronically, where feasible, when the interrogation takes place at police headquarters or another place of detention. She would leave to a committee only a charge to make recommendations regarding the details and specifics of electronic recording.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, ZAZZALI, and WALLACE join in JUSTICE LaVECCHIA's opinion. JUSTICE LONG has filed a separate dissenting opinion. JUSTICE ALBIN did not participate.
The opinion of the court was delivered by: Justice LaVECCHIA
Defendant Thomahl Cook appeals his conviction for the purposeful and knowing murder of Katrina Suhan. He asserts various arguments contending that his statements to investigating law enforcement officers improperly were admitted into evidence. Among them, defendant urges us to find that state due process requirements impose on police officers a duty to record electronically an accused's statements made during a custodial interrogation, and that the failure to record requires suppression of his incriminatory statements. Defendant also argues that the trial court erred in refusing to admit evidence that suggested the guilt of an unidentified third party and that the verdict was against the weight of the evidence.
We find no reversible error and, therefore, affirm the judgment of conviction entered against him. In respect of the assertion that custodial interrogations must be recorded electronically, we decline to expand the due process requirements of the New Jersey Constitution to encompass a duty that the police record electronically a custodial interrogation, and note specifically the absence of any legislative action to support such a requirement. That said, we conclude that, as part of our supervisory authority over the criminal justice system, we will establish a committee to examine and make recommendations on the use of electronic audio and video recording of custodial interrogations. The committee shall seek input from the competing interests of law enforcement, at the State and local levels, and the public defender and the criminal defense bar. In sum, we conclude that it would be inappropriate to impose sweeping changes in law enforcement practices of the sort advanced by defendant without notice and without permitting thorough consideration of the policy and financial implications of those changes.
The facts necessary to the disposition of the issues on appeal are recited below. They have been gleaned from the record developed during pre-trial motion applications and at trial.
Fifteen-year-old Katrina Suhan was murdered sometime in the early morning hours of Saturday, February 14, 1998. She was seen last on that date at about 12:30 a.m., walking home from Roller Magic, a South Amboy roller-skating rink where she and her girlfriends frequently skated. A friend who had been with her, classmates driving by, and a security guard closing the rink, saw her walking alone on Stevens Avenue in South Amboy.
Ordinarily it would have been at least a fifteen-minute walk from the rink to her home. At sometime between 12:30 and 1:00 a.m., a resident of Stevens Avenue heard a male and a female arguing outside his window. The male voice was saying "Come on. Let's go," and the female voice was saying, "No, I'm not going nowhere with you." Shortly thereafter, the resident thought he heard a scream come from across the street. Another neighbor on Stevens Avenue also heard a girl screaming, "Leave me alone. Don't touch me. Help me" at approximately 12:15 a.m. That resident testified that she heard two male voices urging the girl to "shut up" and to "be quiet."
Katrina's body was found on the afternoon of Sunday, February 15 in a rough wooded lot behind the Hill Lanes bowling alley located in the neighboring town of Old Bridge. The bowling alley was approximately three miles from where Katrina was last seen. She had been brutally beaten. Her body was positioned face downward and a jacket covered her head; her pants had been pulled below her waist. Large pieces of concrete lay atop her hands and head and an overturned red shopping cart was situated in front of, and partially on, her body. A trail of blood led to the body and to several rocks near her head. A forensic pathologist expressed the view that Katrina died of blunt trauma injury to the head. There was injury also to her left breast that was consistent with a bite mark; there were no other physical signs of sexual assault.
Defendant, who was twenty-four years old at the time of the murder, had been known to go to the roller rink in South Amboy and had been observed interacting with Katrina while there.*fn1 Heather McKnight, who was defendant's girlfriend, Donna Pascale, Heather's fellow tenant in Agape House (a home for young females located in Somerville), and Robert Poquette, a tenant at the Somerville boarding home in which defendant resided, all testified that on the night Katrina was murdered defendant was looking for transportation to the South Amboy roller rink. According to Pascale, defendant told her that a friend had agreed to drive him to the rink. McKnight testified that defendant told her that he was going to the rink with a friend named "Noal." Apparently, McKnight was not planning to be with defendant that night as she intended to stay with her sister, who lived out of town, from Friday afternoon to Sunday afternoon.
The record reveals certain information from third parties concerning defendant's whereabouts during the evening of Friday, February 13, 1988. At approximately 9:45 p.m. that night, defendant encountered fourteen-year-old T.S., and two of her friends, at the Bridgewater Commons Mall. T.S. testified that she spoke with defendant at the mall for twenty minutes to a half hour before all five departed, on foot. While walking to T.S.'s home, defendant commented to T.S. that she reminded him of "Kat," a shorthand reference that T.S. took to mean "Katrina." During the walk defendant also told her he was going to a skating rink in South Amboy to scare someone. T.S. recalled that she entered her home sometime between midnight and 12:30 a.m. that night, and defendant left on foot five or ten minutes before she entered the house. T.S.'s mother corroborated that her daughter arrived home at approximately midnight that evening.
Both McKnight and Pascale saw defendant on Sunday, February 15. Pascale observed that defendant had cuts on one of his hands and that his knuckles were swollen, and McKnight testified that defendant's right arm appeared to be injured. On Monday February 16, Pascale went to the Somerville police to report her suspicion that defendant was involved in the publicized murder of the girl from the roller rink.
At approximately 9:30 p.m. that evening, defendant was arrested on the basis of two outstanding municipal warrants.*fn2 He was transported to police headquarters in Somerville for questioning about the Suhan murder. In reviewing the record concerning defendant's interrogation, we focus here on the evidence presented pre-trial at defendant's Miranda hearing.
There are no video or audio tapes of defendant's custodial interrogations. The entire record consists of the reports of the investigating officers and ...