On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Numbers 02-07-2656 and 01-03-1436.
Before Judges Pressler, Ciancia and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2004
In these back-to-back appeals, we once again address the parameters for interrogation of suspects in police custody and the totality of circumstances that render a confession inadmissible. Defendant appeals from convictions arising out of two separate indictments, one charging him with murder and related offenses,*fn1 and the other with conspiracy and five robberies unrelated to the murder allegation.*fn2 Defendant's confessions to the murder and robberies came during a marathon interrogation under unusual circumstances. His motions to suppress the confessions were denied in both cases. We reverse the convictions on both indictments and remand for new trials.
The story begins on January 24, 2001, at approximately 3:00 a.m., when Kim Smith heard a car horn and a man yelling outside her Newark home. From her window, Smith saw defendant, whom she had known since he was a young child, standing next to a Lincoln Navigator (SUV), yelling for her son. Smith called 9-1-1 because she was frightened by defendant's behavior. After Smith called the police, she saw defendant get back into the SUV.
As the police officers arrived at Smith's home, they saw the SUV pull out of the driveway, turn left onto Park Street, and stop at the intersection of Park and Ridge Streets. The officers attempted to stop the SUV with their lights and siren. When the vehicle did not stop, they used the microphone to tell the driver to pull over, turn off the engine and place his hands out the window. The driver, Andrew Casimir, did as instructed. As one of the officers walked toward the SUV, he heard three or four gunshots fired from the passenger side, thought the shots were directed toward him, and returned fire. The officers heard another shot as the SUV suddenly moved away from the curb, swerved down the street about two or three blocks and struck the median. When the SUV stopped, the pursuing officers saw a hand holding a black revolver out the window. As they approached the now-stopped vehicle, they saw Casimir slumped over the steering wheel with blood coming from his head. Defendant was in the passenger seat, from which he had attempted to drive the SUV. He was ordered to drop his gun, get out of the SUV and lie down on the ground. When he got out of the SUV, he was wearing only a short-sleeved T-shirt and jockstrap. He wore no jacket, pants, shoes or socks. He was handcuffed and escorted to a patrol car.
At 5:10 a.m., approximately two hours after the shooting, Homicide Investigator, Richard Gregory, of the Essex County Prosecutor's Office, and Sergeant John Melillo, of the Newark Police Department, arrived at the scene. It was cold, dark and there was snow on the ground. They saw Casimir's body still slumped in the driver's seat of the SUV and a revolver and a cell phone on the ground next to the driver's door. Melillo saw the passenger door standing open with articles of blood-stained clothing scattered on the ground. Defendant was seated in the back of a patrol car still wearing only the T-shirt and jockstrap.
Sometime thereafter, defendant was taken to Newark Police Headquarters for interrogation. By the time he arrived, defendant was wearing the jockstrap, the short-sleeve T-shirt under a red plaid flannel shirt, and no shoes or socks. The clothes that had been scattered around the SUV had been taken for DNA testing, as were the shirts defendant was wearing when he arrived at headquarters. He was given a hospital gown to wear over the jockstrap and a pair of socks.
At the suppression hearing on the murder indictment, Gregory testified that when he saw defendant again at police headquarters, defendant was in the presence of several officers, and was "rapping and rocking" to himself, saying his name in a strange, "wired" way. He indicated that defendant had been given his Miranda*fn3 warnings when first taken into custody and again at headquarters when the officers began questioning him. No written waiver was signed at the time, however, and Gregory proceeded to question defendant for "hours." The first Miranda waiver was signed at 12:10 p.m. Gregory testified that the questioning was not continuous and that he gave defendant a bag of chips and a soda during the interrogation.
Defendant testified that he was removed from the passenger side of the SUV by police and held on the ground with an officer's knee in his back before he was handcuffed. The weather was very cold, and he was wearing only the jockstrap. After he was handcuffed, he was escorted to one of the police vehicles where he was placed in the back seat, but never given a blanket or anything to cover himself. He testified that he had been smoking marijuana earlier that day and could not recall the last time he had eaten or gotten any sleep before he was arrested.
When he was placed in the interrogation room at headquarters, defendant was handcuffed to a chair by one hand. He testified that "[t]here was an influx of detectives coming in and asking me questions." In response to his answers, the officers told him, "That's not what we want to hear," and ordered him to tell them what actually happened. Defendant testified that the officers said they had photographs from a surveillance camera at a nearby gas station showing him firing the gun. He claimed he was not permitted to call his grandfather when he asked to do so; was not given anything to eat or drink; and was not permitted to use the bathroom, but was given a soda can to urinate in. Defendant testified that he was "upset" and "scared" because "growing up as a child I used to see my father get beat up by police," and in April 1999, his "godbrother" "stopped breathing while [he was] in the custody of police."
At 12:10 p.m., defendant signed the Miranda waiver form and at 12:15 p.m., began his written statement in a question and answer format. In response to the initial questions in the written statement, defendant said he was twenty-three and had finished his sophomore year in college. In the statement, defendant acknowledged that the Miranda warnings were read to him verbally, that he read and signed the waiver form and that he was giving the statement of his own free will without any threats or promises. He stated that the SUV was a "cab" and the driver, whom he had never met before, was an employee of Class A Limousine Service in New York. Before going to the Smith home in Newark to look for his friend, defendant had been cruising around New York and Jersey City. When the police came to the Smith home and followed the SUV, the driver tried to pull over. Defendant pulled out his gun and told the driver to keep going. Defendant stated that the driver tried to take the gun and "one (1) shot went off. Then I tried to gain control of the jeep because the driver was slumped over... and a couple of more shots came from my gun." The question and answer session resulting in defendant's written statement ended at 3:20 p.m., twelve hours after his arrest.
Defendant testified that he knew Detective Melillo from a prior incident when he was questioned by police about another murder and felt he had been threatened at that time. So, when he was presented with the waiver form and written statement, he signed them because he was afraid.
While defendant was being interrogated on the murder charge, Newark Police Detective Michael DeMaio was investigating a rash of bank robberies when he saw a photograph of defendant on another detective's desk. DeMaio recognized the photo on the desk as similar to photos taken by a bank surveillance camera during one of the robberies he was investigating. At about 4:15 on the afternoon of January 24, DeMaio went to the room where defendant was still being detained on the murder charge, advised defendant of his Miranda rights and showed him the bank surveillance photograph. DeMaio testified that he asked defendant if he wanted to talk about it, defendant agreed and gave five written statements, in question and answer format, between 5:00 p.m. on January 24 and 12:40 a.m. on January 25. Defendant signed a Miranda waiver form before giving each statement, and signed the surveillance photos presented by DeMaio, identifying them as photos of him.
At the suppression hearing on the robbery charges, DeMaio testified that they took breaks for defendant to eat, drink, use the rest room and smoke cigarettes. During DeMaio's questioning, defendant was wearing the hospital gown, but DeMaio did not know why. Defendant was still handcuffed to a chair, but the cuffs were removed to allow him to eat and go to the rest room. DeMaio was aware defendant had been held for over twelve hours on the murder charge when he approached defendant, but was unaware that defendant had just been interrogated for hours by another detective respecting the murder investigation or that defendant had given a written statement in that case.
At the robbery suppression hearing, defendant testified to essentially the same scenario leading up to his questioning by DeMaio as he did during the suppression hearing on the murder charge. Defendant acknowledged making statements to DeMaio admitting each of the robberies. When the statements were typed and brought to him for signature, however, he told the detective and a federal agent who was present that he "was thinking twice about signing 'em [sic]." He claimed that DeMaio then promised him that if he signed the statements, he would receive probation if and when he returned the money taken from the banks. Defendant denied identifying himself in the bank surveillance photos but said DeMaio told him the photos were of him and there was "[n]o reason for me lying. Make it easy on myself," so he signed the photos.
Defendant testified that he did not make the statements voluntarily, rather he "conjured up part of the story that they had." He reiterated his fear because his "godbrother... stopped breathing while he was in the custody of police." He acknowledged he never asked to stop the interrogation or asked for a lawyer or counsel, but that he asked to "have somebody come as a form of representation" and "was hoping that my grandfather could come in there with me" because he did not "trust" the police, "didn't feel comfortable, didn't really know what to expect." Defendant testified that he was given a turkey sandwich toward the end of the robbery interrogation but that he threw it away because he did not trust the police.
Defendant did not remember if he read the Miranda waiver forms and typed statements or they were read to him before he signed them. Nevertheless, he acknowledged that he understood his rights and that he was familiar with the ...