On appeal from the Superior Court, Appellate Division, whose opinion is reported at 384 N.J. Super. 351 (2006).
(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).
[NOTE: This is a companion case to State v. Brown and State v. Tucker, also decided today.]
In this appeal the Court considers whether Ahmed Elkwisni's right to remain silent was violated when the prosecutor cross-examined him concerning those portions of his trial testimony that were not included in a statement made at the time of his arrest.
On the evening of March 24, 2003, Elkwisni and his co-defendant, Ibrahim Samha, entered a convenience store where Jamal Darwish was working alone behind the counter. Elkwisni and Samha approached Darwish and demanded money. Samha held a pistol and used it to hit Darwish in his face and hand. After Darwish fell to the floor, Elkwisni kicked him in the stomach. Elkwisni demanded keys from Darwish and locked the front door of the store. Darwish's hands and feet were secured with duct tape, and he eventually revealed where he kept the money. When Elkwisni located the money, he became upset with the small amount and told Samha to "finish [Darwish] off."
While the robbery was taking place, several people realized something was wrong in the store and called the police. Garfield police surrounded the store and were preparing to remove the front door from the hinges. Before they could do so, Elkwisni, Samha and Darwish appeared and opened the door. Police rushed in and ordered all three to the floor. Darwish was bleeding from his head and alerted police that the two men had tried to rob him.
Elkwisni and Samha were arrested. Police read Elkwisni his Miranda rights and placed him in a patrol car. A search revealed that Elkwisni had $176 in cash on his person. Elkwisni initially denied knowledge of a gun, but after an officer said leaving the gun in a store might result in a child finding it, Elkwisni revealed the gun's location. Police searched that area and found a BB handgun.
Elkwisni was charged with kidnapping, armed robbery, aggravated assault, and other offenses. At trial, Elkwisni testified on his own behalf and raised the defense of duress. Elkwisni claimed that he was on the way to a restaurant with another friend, who asked Samha to join them. Elkwisni said that Samha asked them to go to the convenience store so he could collect some money from a friend. Samha initially entered the store alone, and when Elkwisni went in, he found Samha engaged in a struggle over a handgun with Darwish. Samha secured possession of the gun and pointed it at Elkwisni. Samha forced Elkwisni and Darwish to the back of the store. Elkwisni claimed he was fearful of Samha and followed his instructions as Samha demanded money from Darwish. Elkwisni claimed that he attempted to telephone the police, but Samha saw him and grabbed his cell phone.
Elkwisni stated that after police arrived and arrested him, he was afraid he would be placed in the same patrol car with Samha. He claimed that his focus was on the police efforts to secure Samha, and therefore, he did not immediately respond to the police officer's questions. However, after the police placed Samha in a different car, Elkwisni said he told police what occurred in the store, describing how Samha pointed a gun at his head and stuffed money inside Elkwisni's pocket.
Based on Elkwisni's affirmative defense of duress, the prosecutor cross-examined him about his failure to immediately advise police after his arrest that Samha had coerced him to participate in the crime. Later, in summation, the prosecutor argued that a reasonable person would have immediately informed the police that he was coerced to participate in the crime if that was true.
The jury found Elkwisni guilty of second-degree robbery and a weapons offense, and not guilty of kidnapping, armed robbery, and the other charges. The trial court granted Elkwisni's motion to impose a sentence one degree lower and imposed a four-year term with eighty-five percent to be served without parole.
On appeal, with one judge dissenting, the Appellate Division affirmed Elkwisni's convictions. The majority found no violation of Elkwisni's right to remain silent, but remanded to the trial court for a new hearing on the admissibility of Elkwisni's statement to police concerning the location of the handgun. The dissenting judge found a violation of Elkwisni's right against self-incrimination, but would have affirmed the admissibility of Elkwisni's statement to police. Elkwisni appealed as of right and also filed a petition for certification on the remand issue. The Court denied Elkwisni's petition for certification, leaving for this appeal only the question whether Elkwisni's right against self-incrimination was violated.
HELD: A prosecutor can cross-examine a defendant concerning inconsistencies between his or her post-Miranda statement to the police and his testimony at trial.
1. Recently, this Court reaffirmed that our state law privilege against self-incrimination "does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551 (2005). The United States Supreme Court also has held that use of a defendant's silence at the time of his arrest and after receiving Miranda warnings is a violation of the Due Process ...