On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Number 1424-06-02.
Before Judges A. A. Rodriguez, Cuff and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2004
The State of New Jersey, by leave granted, appeals from an order granting defendant Tatiana Chirokovskcic's motion to suppress certain statements made by her while in police custody. We affirm.
The facts surrounding defendant's interrogation are not in dispute. On the morning of September 1, 2001, the body of John Dudowicz was discovered by his sister in the basement of his home in Secaucus. Defendant, who had been the decedent's housekeeper, was in the house at the time that the body was discovered. Hidden near the body the police found a pair of bloodstained rubber gloves.
On the same day, defendant was interviewed by homicide investigators at the Hudson County Prosecutor's Office. She told them that she had been working for the victim, who suffered from cerebral palsy, for approximately four years. Her duties included cooking, cleaning and shopping for him as well as assisting him with personal care activities such as bathing and dressing. She also was required to drive him to places he desired to go. In addition, she had access to his credit cards for her use in buying groceries. Defendant told the investigators that she had been involved in a sexual relationship with the decedent as well, which had begun about six months after she had started working for him. Finally, she told the investigators that she had last seen the victim on August 29, 2001.
During the course of the investigation, the officers learned that the victim had died from multiple blunt force trauma and that there were no signs of forced entry into the home. They also discovered that only the victim, his sister and defendant had keys to the residence. The victim's sister was the executrix of his estate and she soon found that two checks had been written on the victim's account out of sequence and for the benefit of defendant. A handwriting expert examined the two checks and opined that decedent's signature on them had been forged. Further investigation uncovered charges to the victim's credit card that had been made at times when it was believed that the victim had been at work and involved purchases for which he had not signed. In addition, while the investigation was being conducted, defendant was seen driving the victim's automobile. She declared that the vehicle was a gift to her and she registered the vehicle in her own name in Connecticut. In doing so she utilized a document purportedly signed by the decedent but which was dated some six weeks after his body had been found and which the handwriting expert believed was also a forgery.
On October 19, 2001, the Prosecutor's Office received the results of Polymerase Chain Reaction (PCR) testing performed by Cellmark Labs on the rubber gloves. That testing revealed that the blood found on the outside of one of the gloves was that of the victim. It further revealed that there was DNA material inside that glove. Testing of that DNA, while not definitive, demonstrated that the victim, defendant and an unidentified third person could not be ruled out as the source of the DNA. Based on this information, on February 1, 2002, defendant was arrested and charged with murder, N.J.S.A. 2C:11-3a(1), -3a(2); theft by deception, N.J.S.A. 2C:20-4; and uttering a forged instrument, N.J.S.A. 2C:21-1a(3).*fn1 She was advised of her Miranda*fn2 rights and she signed a written waiver of those rights when she arrived at the prosecutor's office that day.
In preparation for their interrogation of defendant, the detectives created a fictitious laboratory report. That report included some of the findings contained in the Cellmark Labs report, namely that DNA analysis had identified the blood on the outside of the glove as that of the victim and that DNA from defendant had been found on the inside of the glove. In addition, however, that report falsely purported to have identified the time when the two DNA samples had been deposited on the glove. That false time notation effectively established that both samples were picked up by the glove at approximately 5:00 a.m. on August 30, 2001, and therefore demonstrated that defendant had been at the scene of the murder. Detective Robert Bava, who had created the fictitious report, testified during the hearing on the motion to suppress. He testified that he had created the false report in order"to confront defendant with what would be interpreted by most people as irrefutable scientific proof that established her presence at the scene at the time of the murder."
During the interrogation, which continued for several hours, but which included breaks for a variety of reasons not germane to our analysis, Detective Bava showed the fictitious report to defendant and explained to her what the information in that report meant. Detective Nichelle Luster, who also testified at the suppression hearing, likewise referred to the information in the fictitious report as the questioning continued. Ultimately, although defendant continued to state that she had not murdered the victim and while she was upset that she was being accused of the murder and the theft of the vehicle, she made a variety of incriminating statements. Included among the statements was her admission that she had in fact been in the house on August 30, the date given in the fictitious report, that she had found the victim's body but had not reported it because she feared being blamed for his death and that she had touched the body at that time while wearing the gloves. Later that evening, she gave a recorded statement which included these admissions.
Defendant moved to suppress the statements made in the interview after the time when the fictitious report was shown to defendant as well as defendant's recorded statement in its entirety. The motion judge granted that relief, reasoning that the creation of the fictitious report and its use during the interrogation was a violation of defendant's Fifth Amendment rights. He further reasoned in the alternative that this court's then-recent decision in State v. Patton, 362 N.J. Super. 16 (App. Div.), certif. denied, 178 N.J. 35 (2003), which precluded the use of fabricated tangible evidence in police interrogations, was entitled to retroactive application. On appeal, the State argues that the motion judge erred with respect to his analysis of Patton and retroactivity. We disagree.
Initially we note that the retroactivity analysis is only appropriate if the principle to be applied is considered to be a"new rule of law." State v. Cupe, 289 N.J. Super. 1, 12 (App. Div.)(citing State v. Burstein, 85 N.J. 394, 403 (1981)), certif. denied, 144 N.J. 589 (1996). The reason, of course, is that new rules tend to"'disrupt a practice long accepted and widely relied upon....'" State v. Lark, 117 N.J. 331, 338 (1989)(citation omitted), and therefore have the potential to create confusion and disruption if applied retroactively. In order to be deemed a new rule for retroactivity purposes,"there must be a'sudden and generally unanticipated repudiation of a long-standing practice.'" State v. Purnell, 161 N.J. 44, 53 (1999)(citations omitted).
Once a court has concluded that it is faced with a new rule, three factors must be considered in order to determine whether that rule is to be applied retroactively. In making that determination, the court must analyze"(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." State v. Knight, 145 N.J. 233, 251 (1996) (quoting State v. Nash, 64 N.J. 464, 471 (1974)(other citations omitted)). Notwithstanding this well-established three-part test, a retroactivity determination in ...