On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1280-03.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wecker, Fuentes and Graves.
Defendant Ahmed Elkwisni was convicted after a jury trial of second-degree robbery, in violation of N.J.S.A. 2C:15-1; and third-degree possession of a weapon without a permit, in violation of N.J.S.A. 2C:39-5b. He was acquitted of kidnapping, armed robbery, aggravated assault, terroristic threats, and second-degree possession of a handgun for an unlawful purpose.
The trial court sentenced defendant to an aggregate term of four years,*fn1 subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA). N.J.S.A. 2C:43- 7.2.*fn2 The court also imposed the mandatory fines and penalties.
Defendant now appeals raising the following arguments:
THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO INTRODUCE A STATEMENT BY THE DEFENDANT ELKWISNI REGARDING THE LOCATION OF THE GUN USED IN THE ROBBERY SINCE THE STATEMENT WAS MADE WHILE HE WAS IN CUSTODY AND WITHOUT A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND TO HAVE COUNSEL PRESENT AFTER ADEQUATE ADVICE.
THE PROSECUTOR'S REPEATED CROSS-EXAMINATION AND COMMENTS IN SUMMATION ON DEFENDANT'S SILENCE AT THE TIME OF HIS ARREST INFRINGED ON THE DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE LAW.
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE TO ORDER A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
We agree with defendant's argument as to Point One. We are satisfied that the record developed before the trial court at a N.J.R.E. 104 hearing was insufficient, as a matter of law, to determine, beyond a reasonable doubt, that defendant voluntarily and knowingly waived his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). See also State v. Adams, 127 N.J. 438, 447 (1992). We are equally satisfied, however, that the appropriate remedy to correct this error is not reversal of defendant's conviction, but to remand this discrete issue to the trial court to conduct a new hearing on voluntariness.
We discern no legal basis to reverse defendant's conviction based on the arguments raised in Points II and III. The argument raised in Point III lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In the interest of clarity, we will nevertheless examine the argument raised in Point II, in order to delineate the proper boundaries of cross-examination by the State when a defendant testifies regarding statements he made to the police after his arrest. Here, defendant offered these statements in support of his affirmative defense of duress.
As the facts here illustrate, the line of demarcation between legitimate impeachment of a defendant's credibility through the use of prior inconsistent statements, and improper inquiry or comment on defendant's constitutional right to remain silent, is not always clear. This question was only obliquely noted by the Supreme Court in State v. Muhammad, 182 N.J. 551, 566 n.3 (2005), and was not directly raised in State v. Black, 380 N.J. Super. 581 (App. Div. 2005), our most recent post- Muhammad opinion.
This case gives us the opportunity to address the issue directly, and, in the process, provide guidance to the trial courts on how to: (1) safeguard a defendant's constitutional right to remain silent, by setting strict limits on the scope of the State's cross-examination; and (2) craft jury instructions that will enable jurors to distinguish between legitimate evidence that may affect a defendant's credibility, and an unconstitutional inference of culpability based on a defendant's post-arrest silence.
We will consider all of defendant's arguments on appeal in the context of the following facts, which we summarize here based on the evidence presented at trial.
On March 24, 2003, at approximately 8:30 p.m., Ibrahim Samha and defendant entered a convenience store in Fairfield owned and operated by Jamal Darwish. The two men approached Darwish while he was sitting behind the cash register and Samha pointed a handgun at Darwish's head and demanded money. Samha was wearing blue transparent gloves. Samha then pulled the storekeeper from behind the counter, and struck him in the face and head several times with the handgun. According to Darwish, while he was on the floor, defendant kicked him repeatedly in the stomach. Both men then dragged the victim to an aisle, in an apparent attempt to shield him from the view of any passerby. Samha kneeled on Darwish's neck, maintaining the gun pointed at his head.
According to Darwish, defendant obtained the keys to the store and, after some initial difficulty, was able to lock the entrance doors. Darwish was then tied up with duct tape, while Samha continued to kneel on him, demanding money and making repeated threats to kill him. Darwish finally capitulated to the assailants' demands, and gave defendant directions on how to open the register. Dissatisfied with the amount of money in the register, defendant allegedly told Samha to "finish [Darwish] off."
While the robbery was in progress, a customer, subsequently identified as Alan Pollock, tried to enter the store, only to discover the door was locked. Pollock testified that he saw defendant walk to the cash register and attempt to open it. Pollock also observed defendant wave his arms at him, as if to indicate that the store was closed. Although Pollock initially left, he quickly returned and observed Samha standing behind the counter ripping phone cards off the wall. The police arrived shortly thereafter.
Upon their arrival, the police observed Darwish inside the store, lying on the floor, with his hands tied with duct tape. He was also bleeding from the head. Darwish testified that as the police attempted to break down the locked door, defendant told Samha to cut the duct tape from Darwish's hands. It was also around this time that defendant took possession of the gun, and hid it. According to defendant, he did this to avoid the potential for a violent confrontation with the police. Prior to the police forcibly entering the store, Darwish testified that one of the defendants gave him the store key.
All three men then walked, single file, toward the front of the store, with Darwish in the front, Samha behind him, and defendant in the rear. Darwish opened the door, and the police immediately rushed in and ordered the two defendants to the ground.
During the trial, at the completion of the victim's testimony, the trial court excused the jury, and conducted a N.J.R.E. 104 hearing to determine the admissibility of an oral statement allegedly made by defendant after he was in police custody.*fn3 Richard Uram was the first Garfield police officer to interact with defendant. Uram handcuffed defendant while he was on the ground, and placed him in the back of a police car.
According to Uram, he read defendant his Miranda rights. At the time of defendant's arrest, Uram's main concern was the recovery of the handgun used in the robbery. Uram gave the following account of what transpired after he placed the handcuffed- defendant in his police car:
I began talking to [Elkwisni]. Well, first, after I arrested him, I -- I read him his rights. I remind him again of his rights inside the car and I asked him -- I said, you know, believe there's a gun involved, this is a store, kids go in the store, if you hid it in the store, tell us where it is. I mean, God forbid a kid goes in there and grabs this gun and he ends up thinking it's a toy, he shoots somebody and he kills him. You know, we have to put the public safety --
Q: And you said that you reminded him of his rights in the car. Where was the first place that you advised him of his rights?
Q: All right. And was that a verbal or written form?
Q: And then you said you reminded him of his rights again in the car. What car are you referring to?
A: My police unit at the time.
Q: Okay. So the only two people in the car when you were reminding him of his rights in the car was you and the defendant Ahmed Elkwisni?
A: He was in the car, I was standing alongside the car speaking with him with the door open.
Q: Okay. You're standing alongside. Okay.
A: Yes. He was in the back.
Q: Now when you're having this conversation with him, I take it you're speaking in English?
Q: And what about him? What is he speaking to you and after you advised him of his Miranda rights did he say anything to you.
A: He was -- he was speaking. When he spoke to me, he speak [sic] English. At first he declined that there -- he didn't know anything about a gun. As he's telling me this, he's looking around. He just appeared very nervous. He just kept looking right to left, right to left, looking --looking around and he just -- he kept denying it, denying it, denying it. Then eventually he told me -- he goes, "It's behind the Huggies."
Q: And nobody else was around other than -- the other defendant was not there at the time, correct?
A: The other defendant had -- had no contact whatsoever where I was.
Q: Now at a later point in time at headquarters, was there a written form given to the defendant with regards to his Miranda rights, Ahmed Elkwisni? Were you involved in that at all?
Q: That was another police officer?
A: I -- if -- if someone else gave it to him, I don't know. Maybe a detective did.
Uram gave the following additional facts during defense counsel's cross-examination:
Q: Okay. And what is this document?
A: Advising somebody of their Miranda rights.
Q: Okay. And what time is that document executed?
Q: Okay. You had arrested him much earlier in the evening, hadn't you?
Q: In the incident report that you filled out --
Q: -- you never indicated that you read him his Miranda rights, did you?
A: I don't believe I put it in the report.
Q: Customarily it would be included in there, wouldn't it?
A: I usually don't put it in there, only on DWI cases.
Q: Well, aren't you required to by statute?
A: To put it in the report?
Q: You also [in your report] used the words "with the safety of the public in mind"?
Q: Do you normally qualify the reason that you're asking a suspect a question?
Q: Do you normally qualify, indicate the reasoning for asking a suspect a particular question in your reports? You say the reason that you're asking the question.
A: I just put it down. I mean, I don't understand what you're trying to say.
Q: Okay. So when you normally fill these out, okay, in other cases other than this one, do you normally, customarily, in your regular course of filling these out state in your reports the reason that you're asking a suspect a particular question?
A: I just -- if -- if, I mean, sometimes you have to do things in order, like probable-cause order, you know?
Q: So you were trying to establish some reason or justification for asking him the question?
A: What was the -- what was the line again?
Q: Well, the line was, "This officer, with the safety of the public in mind, asked."
A: Right. Well, because that was my -- I wanted to make sure whoever read it understood that's why I was asking him that question.
Q: Your testimony now is that you can remember an arrest a lot of arrests ago, maybe seventy-five arrests ago, we'll say, today even though there's no record of it of what you did that day?
A. When I place somebody in custody, I read them their rights.
Q: Is that something that you normally do?
A: That's how we're trained.
Q: So you're testifying from what you normally do. You don't necessarily know that you did it that day?
A: I know I did it that day because I do it every time I make an arrest.
Q: So you only know you did it that day because you customarily do it?
A: Because I always do it.
Uram was the only witness to testify at the N.J.R.E. 104 hearing. In fact, his testimony was the only evidence presented by the State in support of admitting the statements made by defendant shortly after he was arrested.
At the close of the testimony, defense counsel made the following argument in support of his application to exclude defendant's statement:
I think he clearly testified that he doesn't have any independent record of having read his Miranda rights to this witness that day. His testimony was that he normally does it, but that he doesn't have any independent recollection as to this particular arrest.
Clearly, there's nothing in his statement to support a claim that he did read him his Miranda rights. The Miranda form itself is not executed until 11:30 p.m. that evening. He indicates in his statement a reason or some justification for having questioned him, which seems a little unusual. I think, Your Honor, the statement should be excluded.
Relying exclusively on Uram's testimony, the trial court made the following findings:
[In determining the adequacy of] Miranda warnings, basically the Court is instructed to go to the totality of the circumstances. This particular case the testimony is that [Uram] responded to an armed robbery arrest . . . . and at the time he arrested [defendant], that he had read him his rights and reminded him of those in the car; that he had cuffed him; that initially Mr. Elkwisni said he knew nothing about the gun, but then the officer had said something to him about safety of children. And as a result of that, he said they were behind the Huggies.
Based upon the totality of the circumstances, it appears the Miranda warnings were read to him; that the defendant understood them based upon the officer's question. There didn't seem to be any trickery. I guess we're touching upon the Christian burial a little bit as to the safety of children, but it was voluntarily made. I will allow it.
A. Waiver of Miranda Rights
We start our analysis of this issue by reaffirming certain basic principles of constitutional law.*fn4 In determining the adequacy of Miranda warnings given by the police as a prerequisite to finding that defendant knowingly, voluntarily and intelligently waived the rights contained therein, a court's function is not simply to ascertain whether the police meticulously performed some mechanical exercise. A court must carefully review the substance of what was communicated by the police to a defendant, in order to determine whether the alleged waiver was the product of an informed, intelligent and voluntary decision. As Justice Clifford wrote more than thirty years ago:
In resolving the adequacy of the language of a Miranda warning a court should give precedence to substance over form. The decision does not require that any specific language be used to inform an accused of his rights. . . . The "words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient."
[State v. Melvin, 65 N.J. 1, 13-14 (1974) (citations omitted) (emphasis added).]
The dissent concludes that the trial court was "entitled to credit the officer's unrefuted testimony that he followed his usual procedure of giving the required warnings to every arrestee." Adoption of the dissent's analysis would render a Miranda hearing perfunctory, devoid of both substance and meaning.
Miranda warnings are given with the purpose "to neutralize the pressure inherent in custodial interrogation." State v. Smith, 374 N.J. Super. 425, 433 (App. Div. 2005). Prior to questioning defendant, Officer Uram was required to warn him (1) of the right to remain silent; (2) that any statement he made could be used against him; (3) he had a right to an attorney; (4) if he could not afford an attorney, one would be provided; and (5) he had the right to stop answering questions at any time. Duckworth v. Egan, 492 U.S. 195, 198, 109 S.Ct. 2875, 2877; 106 L.Ed. 2d 166, 174 (1989); Miranda v. Arizona, supra, 384 U.S. at 44, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706-07; State v. Knight, 183 N.J. 449, 462 (2005); State v. Godfrey, 131 N.J. Super. 168, 173 (App. Div. 1974), aff'd, 67 N.J. 267 (1975).
We review a trial court's findings as to the admissibility of a defendant's confession under the "sufficient credible evidence" standard. Knight, supra, 183 N.J. at 468. We will only reverse these findings if they are not supported by substantial credible evidence. State v. Johnson, 116 N.J. 99, 102 (1989). Under this standard of review, it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Our review is restricted to assessing "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid.
Mindful of this standard, we nevertheless conclude, as a matter of law, that the evidence presented to the trial court was insufficient from which to conclude that defendant made a knowing, informed, and voluntary waiver of his rights under Miranda. Here, we are unable to discern from the phrases "I read him his rights," or "I advised him of his rights," what information Uram conveyed to the handcuffed defendant when Uram began to question him in the back of the police car. Without more, there is no factual or legal basis to sustain the trial court's conclusion that "[b]ased upon the totality of the circumstances, it appears the Miranda warnings were read to [defendant]" and that "defendant understood them based upon the officer's question."
It is self-evident that there can be no knowing, intelligent, and voluntary waiver of the rights under Miranda, when the record does not reflect that a fair and accurate recitation of those rights was in fact given by the police to the defendant. Cf. State v. DiFrisco, 174 N.J. 195, 235-36 (2002), cert. denied, 537 U.S. 1220, 123 S.Ct. 1323, 154 L.Ed. 2d 1076 (2003). Without competent evidence from which to find, beyond a reasonable doubt, that defendant waived his rights under Miranda, State v. Adams, 127 N.J. 438, 447 (1992), the trial court's legal conclusion cannot be sustained.
Based on the record developed at the N.J.R.E. 104(c) hearing, the police did not use any improper interrogation techniques to extract an inculpatory statement from defendant.
In fact, defendant's attack on the admissibility of the statement is based entirely on a "sufficiency of the evidence" standard, not on the methods used by the police to question defendant. Stated differently, the record here lacks an adequate evidential foundation from which to conclude that defendant, who was in custody, was given the required information under Miranda; that he understood the information; and that he voluntarily decided to speak to the police about the location of the gun, without first consulting with an attorney.
We consider this situation to be the functional equivalent of the total absence of a hearing, requiring a remand to the trial court to conduct a new hearing on voluntariness. State v. Kelly, 61 N.J. 283, 294-95 (1972); State v. Marczak, 344 N.J. Super. 388, 398 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). On remand, if the State fails:
[T]o establish voluntariness beyond reasonable doubt, the defendant will be entitled to a new trial at which the statements will be excluded. If, however, the State does establish beyond reasonable doubt that the statements were voluntary, and the trial judge so determines, then the defendant's conviction may stand.
[State v. Kelly, supra, 61 N.J. at 294 (citations omitted).]
We are thus satisfied that the remedy here is to remand the matter for a new hearing to determine voluntariness.
B. Public Safety Exception
The State argues in the alternative that even if the record does not support the conclusion that defendant waived his Miranda rights, his statements about the whereabouts of the handgun were nevertheless admissible pursuant to the exigency or public safety exception to Miranda. We disagree.
The public safety exception to the requirement that a person subjected to custodial interrogation by police be given Miranda warnings was first articulated in New York v. Quarles, 467 U.S. 649, 655-56, 104 S.Ct. 2626, 2631, 81 L.Ed. 2d 550, 557 (1984). In Quarles, the police were investigating a sexual assault committed with a handgun. The investigating officer spotted the suspect approaching a supermarket checkout counter.
The suspect was apprehended inside the store carrying an empty gun holster. Immediately after handcuffing the suspect, and prior to reading him his Miranda rights, one of the officers asked him about the whereabouts of the gun. The suspect "nodded in the direction of some empty cartons and responded, 'the gun is over there.'" Quarles, supra, 467 U.S. at 652, 104 S.Ct. at 2629, 81 L.Ed. 2d at 554.
In creating an exigency exception, the majority of the Court in Quarles emphasized that "in the very act of apprehending a suspect, [the police] were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket." Quarles, supra, 467 U.S. at 657, 104 S.Ct. at 2632, 81 L.Ed. 2d at 557-58.
The Court thus reasoned that "concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda." Quarles, supra, 467 U.S. at 653, 104 S.Ct. at 2630, 81 L.Ed. 2d at 555.
In State v. Stephenson, 350 N.J. Super. 517 (App. Div. 2002), we declined to invoke the exigency exception, and emphasized the need to narrowly construe its application. Id. at 524-25. The facts in Stephenson illustrate this point. The police received information that the defendant had threatened to shoot a person with whom he had allegedly argued earlier. The police proceeded to the defendant's motel, handcuffed him, and demanded to know the location of the gun. Contrasting the facts in Stephenson to the Quarles case, we noted that the circumstances of the threat were not immediate, and the gun was not believed to be concealed in a public area, with unrestricted access to it by third parties.
The Stephenson court established that the Quarles exigency exception applies only where the circumstances indicate "(1) there [is] an objectively reasonable need to protect the police or the public; (2) from an immediate danger; (3) associated with a weapon; and that (4) the questions asked were related to that danger and reasonably necessary to secure public safety." State v. Stephenson, supra, 350 N.J. Super. at 525.
Here, defendant and his cohort were apprehended by the police, without any opportunity to conceal the weapon used in the robbery, in any other location but inside the store. The store was surrounded by law enforcement personnel, and the entire area was secured as a crime scene after defendant's arrest. The record is silent as to what efforts, if any, the police undertook to locate the weapon without defendant's assistance. One thing is clear, however; there was no immediate threat to public safety triggering the application of the Quarles exception.
Uram's questions about the gun began after defendant had been handcuffed and placed in the police car. There is no evidence to support the State's claim that the police's interrogation was the product of a spontaneous concern for the safety of the public. According to Uram, he read defendant his Miranda rights on at least two separate occasions. Once immediately after arresting defendant and escorting him to the police car, and again after Uram learned that the gun used in the robbery had not been located. In this context, the "public safety" issue arose as an interrogation tactic, not as an impromptu attempt to address an obvious and immediate public danger. Applying the Quarles exception to these facts subverts the constitutional protections embodied in Miranda, and opens the door to the pretextual invocation of "public safety" whenever the police are not immediately able to recover weapons used in the commission of a crime.
We will now address a question left partially unanswered by the Supreme Court in Muhammad. Namely, what are the limits of prosecutorial inquiry as to defendant's post-arrest silence, when defendant testifies at trial as to the substance of exculpatory statements he allegedly made at or near the time of his arrest. This issue pits defendant's constitutional right to remain silent against the State's right to challenge the credibility of defendant's affirmative defense of duress.
Stated differently, are the concerns raised by the Supreme Court in Muhammad minimized or rendered irrelevant once a defendant affirmatively testifies about what he told the police at or near the time of his arrest?
As with most things in life, the answer to this question cannot be stated through a simple "yes" or "no." Once a defendant testifies about statements he made to the police at or near the time of his arrest, the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made. Cross-examination of the defendant however, must be carefully circumscribed. The prosecutor may not wander into areas not covered by a defendant's direct testimony, to suggest, even implicitly, that a defendant had an affirmative duty to come forward with exculpatory evidence. The State is not permitted to use omitted details or other indicia of the right to remain silent, to shift the burden of proof to the defendant. See State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.), certif. denied, 87 N.J. 424 (1981).
The trial court must also craft jury instructions that will enable jurors to distinguish between legitimate evidence that may affect a defendant's credibility, (internal inconsistencies in the testimony and rebuttal evidence), and drawing a constitutionally impermissible inference of culpability from a defendant's post-arrest silence.
Here, defendant asserted the affirmative defense of duress.
He testified that he was never part of any plans to carry out the robbery, and only entered the store to purchase a soft drink and get something to eat. During his direct examination, he gave the following description of the events that transpired once inside the store:
Q: What did you observe when you walked in the store?
A: When I walked into the store, I saw [the co-defendant]. He was standing at the -- at the register, and ...