On certification to the Superior Court, Appellate Division.
(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. Elkwisni, also decided today.]
In this appeal the Court considers whether the prosecutor's comments on Michael Tucker's failure to include certain information in his initial statements to police violated Tucker's right to remain silent.
On June 11, 2000, Michael Tucker called 9-1-1 and reported he had returned home to discover his mother's dead body. Piscataway police responded and found the lifeless body of Mary Tucker. Police inspected the house and found no evidence of a struggle or forced entry.
Police questioned both Tucker and his girlfriend, Tracy Stepney, who also was present. Tucker stated that he last saw his mother on Friday, June 9. He claimed he drove her to the grocery store and then left to spend the weekend with Stepney in Plainfield. On Saturday, he and Stepney went to New York City for the day. On Sunday afternoon, they returned to his mother's home and found her lifeless body. Tucker claimed he found the back door unlocked. Stepney gave a similar statement.
Police escorted Tucker to headquarters where they administered Miranda warnings. At some point, Tucker was arrested on unrelated outstanding warrants. Tucker reiterated that he last saw his mother on Friday following their trip to the grocery store. He did not mention that he had taken his mother to the bank.
Meanwhile, the police investigation revealed the victim's purse in a bedroom closet containing $747 in cash and a checkbook with the last entry made out to cash in the amount of $3,000. Police learned that the victim cashed a check at the United National Bank in Plainfield on Friday, June 9, and received thirty $100 bills.
In a second interview at police headquarters, Tucker acknowledged that he had taken his mother to the bank, but claimed he waited for her in the car. Tucker claimed that the $520 in his pocket, which included five $100 bills, was money he earned repairing cars.
Police later obtained a bank surveillance tape that showed the victim entering the bank on Friday, June 9. The tape also revealed that Tucker was present in the bank and stood behind his mother as she spoke to the bank teller. Tucker wore denim shorts that police later discovered in Stepney's apartment. Blood tests conducted on stains found on the shorts revealed that some of the blood was the victim's, some was defendant's, and some was of an unknown third person.
Police charged Tucker with purposeful or knowing murder, felony murder, armed robbery, and possession of a weapon. At trial, the State offered Tucker's several statements and presented evidence that the last message on the victim's telephone answering machine was from a person seeking to collect a hospital debt owed by Tucker in the amount of $1,594. The prosecutor emphasized that in his first two statements, Tucker made no mention of having taken his mother to the bank. Tucker did not testify or present any witnesses. The jury was unable to reach a verdict on the charge of purposeful or knowing murder, but found Tucker guilty of the remaining charges. Tucker was sentenced to a life term with thirty years of parole ineligibility.
Tucker appealed. In an unpublished, per curiam opinion, the Appellate Division reversed and remanded for a new trial. The panel ruled that it was error for the trial court to admit evidence that Tucker owed a debt to the hospital, but declined to decide whether a new trial should be ordered based on that error alone. The panel also concluded that it was reversible error for the prosecutor to comment that Tucker did not tell the police in his first statements that he took his mother to the bank. The Supreme Court granted the State's petition for certification.
HELD: The prosecutor's comments about inconsistencies in Tucker's statements did not constitute an unconstitutional comment on silence.
1. The State argues that when a suspect waives his privilege to remain silent and speaks to the police, disclosing new information in several statements, the gaps in those statements are not protected silence. The State also urges that when a suspect is given his Miranda rights and elects to give multiple statements, it is not commenting on silence for the State to point out inconsistencies in the statements. In contrast, Tucker argues that the prosecutor's use of any differences in his statements violated his right against self-incrimination as this Court held in State v. Muhammad, 182 N.J. 551 (2005), because the prosecutor was commenting on silence "while in custody, during interrogation, or at or near the time of his arrest." He contends ...