On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 03-09-1640.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Fuentes and Graves.
Defendant Michael A. O'Neill appeals from an order denying his motion to suppress two tape-recorded statements he made to the police. Defendant argues that the police violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), when they allegedly used a two-stage "question-first, warn-later" interrogation technique found to be unconstitutional in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L.Ed. 2d 643 (2004). After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm the order denying defendant's motion to suppress and we affirm defendant's felony murder conviction. On April 2, 2004, the trial court held a hearing on defendant's motion to suppress. During the suppression hearing, Sergeant Michelle Luster, of the Union City Police Department, testified regarding her questioning of defendant on Monday, April 28, 2003. Defendant was being detained in a holding cell at the Harrison Police Department on unrelated charges when Luster and Detective Robert Bava interviewed him beginning at approximately 3:20 p.m. Luster testified that she and Bava went to interview defendant because "there was some information that during the time of the homicide time frame that Mr. O'Neill was in possession of a handgun."
After defendant gave Luster and Bava a brief account of his activities between 11:00 p.m. Friday, April 25, and 3:00 a.m. Saturday, April 26, 2003, the period during which police believed the homicide had occurred, he was moved from the holding cell to the patrol commander's office. Luster and Bava asked defendant whether he was in the vicinity of the bar Solda Espana (where the victim, a cab driver, picked up his last fare the night he was killed), and defendant acknowledged that he had gone to Solda Espana that night to meet his friend "V" in order to buy marijuana. Defendant stated that he met V in front of the bar and they discussed the drug transaction, V then told defendant to take the next available cab and go to Sealy and Columbia Avenue in Kearny. Luster and Bava asked defendant "what he thought the reason that V told him to take the cab was." Defendant responded that "he believed that V and his friend were gonna set up the cab driver and rob him, and that he was gonna get compensated for him bringing the cab there with either money or marijuana." At that point, which was about 4:45 p.m., Bava and Luster stopped defendant and "verbally Mirandized him." Defendant then agreed to waive his Miranda rights, and he signed a waiver of rights form at 4:46 p.m.
Defendant subsequently gave two taped statements to Bava and Luster, which were recorded and played for the trial judge at the suppression hearing. At the beginning of the first taped statement, taken at the Harrison Police Department, between 5:20 p.m. and 5:50 p.m., defendant was once again advised of his Miranda rights. During his second taped statement, taken at the Hudson County Prosecutor's Office, between 8:47 p.m. and 9:17 p.m., defendant confirmed that he had been advised of his rights on two prior occasions, and he stated that he "clearly" understood his rights. But when defendant was asked if his first statement was the truth, he replied, "No. . . . partially, but no."
In his first tape-recorded statement, defendant denied shooting the victim, and he also denied being present when the cab driver was shot. Defendant claimed V told him to "take the next available cab you see to Seeley and Columbia and I'll look you out . . . ." Defendant told police he tried to do what V had instructed him to do:
[V] told me, he's like, [t]ake the next available cab and I'll look you out. Looking me out, means either give me like four or five bags of weed for free, or maybe throw me 20, or 50 dollars whatever. I had a feeling he was gonna rob the guy, but he did a little more than that apparently. So I, I did what I had to do by getting in the car and taking him over and where Seeley and Columbia are in Kearny I have not the slightest clue. But the guy wanted to bring me over to the Belleville Turnpike which [is] on the border of Kearny and North Arlington. And he was gonna go past it into North Arlington and I was like, [t]urn around, turn around. That's when he made the U-turn at the Supermarket and started going up the Belleville Turnpike toward Kearny Ave[.] and I got out [of] the car at Rutherford Street and Belleville Turnpike and I ran back down Belleville Turnpike, cause he was facing Kearny Avenue, so I ran the opposite direction to get a jump on him and I ran down the street.
Q: Where'd you go after that?
A: I ran through Kearny down side streets back to my house.
Q: How far of . . . a run is that?
A: From my house to where I was . . . roughly two, three miles. So it took me a good 40 minutes to get home.
Q: What time did you get home do you know?
A: To be honest with you I don't know. It was roughly 1:30, 1:45, when I got in the cab, the cab drive took maybe 10 minutes. Then the walk home was probably maybe close to 3:00. Cause I got out the cab around 2:00 and it took me about 45 minutes to get home, cause that's a long walk. And I just went straight to the house.
During his second tape-recorded statement, however, defendant claimed that he accidentally shot the victim as he attempted to exit the victim's cab:
I told him let me out [of] the cab, cause I didn't know, he didn't know where he was going obviously, I didn't know where I was going, so I was just gonna flee on foot. As I opened the door to get out of the back passenger door, he grabbed my hand which was sitting on the seat in front of me. He said, [n]o get out [of] the cab, no get out [of] the cab you must pay. I told him, I was like, [l]isten I don't have my wallet with me (unintelligible) and guy said, [n]o, no, no I call the cops. He picked up his radio, I proceeded to pull out my chrome 40 caliber Ruger out of my right jacket front pocket. I told the guy I was like, [l]et go of me, or you're gonna wear it. The guy let go of my hand as I went to go proceed to get out [of] the car the guy mashed the gas, that threw me back, a round went off, I proceeded to run and . . . I'm not sure if, if the bullet hit him, [or] went past him. But after I fired up the round which was accidental he wound up hitting a telephone pole, I wasn't sure if he died from the bullet, died from the crash just got scared and crashed into the pole, or whatever, I just ran and tried to get away from the scene. . . . I ran up that street, I zig[-]zagged through a couple of streets. And the glove that I was wearing I dropped down a corner manhole cover, or a [g]rate I mean. I ran just made my way home. I put my, put the gun I, I just fired in a bag, put it under the mattress of the bed I was sleeping on. And Sunday afternoon I wound up going out with my friend to the mall, when I got back from the mall the lady I was staying with told me I wasn't welcomed in her house, because she found out about the pistol.
Defendant did not testify at the suppression hearing, and the trial court's reasons for denying defendant's motion to suppress included the following:
THE COURT: [Y]ou make it sound as if the police are surprising your client and the facts as testified to by the witness indicate the opposite. They did display a jacket and hat to him and apparently made known what they thought it would reveal, but it was your client according to the testimony -- the only testimony I have who said, you got me, I shot him, it was an accident. He clearly understood at that point prior to any second statement that he was admitting culpability in a shooting.
MR. DELL'ITALIA [Defense Counsel]: . . . I understand that, Your Honor, but then -- on that my point is that then they go on to question him and take a second statement.
THE COURT: Right. Exactly, sir, but in -- prior to getting into the facts of that statement they remind you, which I think is even going beyond what they're obligated to do under the circumstances, they remind that he had five hours previously been given his rights and asked him if he understood them and your client's response is just telling, I understand 'em clearly. He didn't -- he didn't mumble yes.
[T]here's no requirement that once having been given his rights that he be reminded in detail by a specific recitation. The issue before me is did he -- was he aware prior to the taking of the statement that he had rights and exactly what those rights are, that's the key to Miranda, did he know what his rights are and if he knew what his rights were, did he voluntarily waive them.
So there's no question that he knew what his rights were. The paperwork submitted by the Prosecutor's Office indicates that he was given perfectly acceptable legal Miranda warning[s] prior to the first formal statement. In his second statement he acknowledges that he received them and that he understood them clearly and wished to give a statement.
To me that's clearly and convincingly establishing more so beyond a reasonable doubt that he was aware of his rights at the time he . . . chose to waive them prior to the second statement. There's no formal requirement that . . . he be re-Mirandized after . . . giving no indication that he was anything other than perfectly willing to waive them, which in this case he was. If you listen to the first statement . . . [the officer's] questions are very short and [defendant] is quite verbose, it's his voice filling up 90 percent of the tape.
Defense counsel then asked the trial judge this question:
Oh, and I understand on the first one, but my point is [does] the first [statement] differ from the second one, because the second one . . . places [defendant] involved in it and the question is, you know, . . . should he have been read his rights the second time, that's my question to the [c]court.
The trial judge responded:
[N]o, there's no legal obligation on the part of the State to go over with specificity his Miranda rights and they are quite sufficient. They weren't even required to make reference back to it. You were talking -- you know, if this happened two or three days later or if there had been some substantial break in the interrogation process, then perhaps your argument might have some weight, but this is a continuous series of investigative acts that start -- that only cover a five hour time span, six hour time span. He was advised formally, completely in writing less than five hours before this second statement. But to their credit before they took the statement they once again draw his attention to the previous, perfectly acceptable Miranda warnings that he got and made sure that he understands them and then ask him, when he says clearly, they say will you then answer our questions and he says yes, so there's no question he was aware of his rights at the time he gave the second statement and voluntarily waived them. So your application to suppress the statement is denied.
At defendant's trial, Detective Kenneth Kolich of the Hudson County Prosecutor's Office testified that he was paged during the early predawn hours of Saturday, April 26, 2003, to respond to a crime scene at the intersection of Sealy and Argyle in Kearny. When he arrived at the intersection he saw a cab smashed into a telephone pole and the driver, a man later identified as Luis Tenezaca, dead behind the steering wheel. The medical examiner determined that Tenezaca died from a single gunshot wound to the head. A spent shell casing was recovered from the interior of the cab. Although Kolich did ...