On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-01-00039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad and R. B. Coleman.
The State, on leave granted, appeals from an October 16, 2006, interlocutory order suppressing statements made by defendant, Kha Duc Nguyen, during two separate police interviews on November 24 and 29, 2004, and statements made by his brother, Khuynh Nguyen, during a November 24, 2004, police interview.
This case arises out of the death of Tuan Nguyen, who is unrelated to defendant. On July 27, 2004, the body of Tuan Nguyen was discovered by his father, Joseph, and his stepmother, Xuan, at the bottom of a stairwell in their Somerville home. Tuan's body was covered in blood and an electrical cord was tied around his left wrist. An autopsy revealed that the cause of death was multiple sharp force injuries and asphyxia by strangulation. Tuan had seventy-eight separate stab wounds to his head, neck, chest, back, shoulders and hands.
The police discovered fingerprints in the blood on the walls of the stairway, but the police were not able to identify to whom the fingerprints belong. The fingerprints did not match defendant's, nor declarant's, nor those of anyone else fingerprinted during the investigation. In August 2004, the police also learned that Tuan's stepmother had paid defendant $20,000 to marry her sister so that the sister could come to the United States. It was also discovered that defendant maintained a checking account that listed Tuan's residence as his own. Based on this information, detectives went to the residence of defendant's family in the Port Reading section of Woodbridge Township on August 6, 2004. There they spoke with defendant's father, Khong, his sixteen year old brother, Khuynh, and his sister, Nhung. Because the father spoke only Vietnamese, Khuynh acted as translator. Khuynh informed detectives that he believed his brother was currently in Philadelphia. His sister, however, told the detectives that defendant was actually in Vietnam.
On August 17, 2004, detectives spoke with defendant's mother, also named Nhung, who told them she and her daughter had taken defendant to the airport on the night of July 29, 2004. The police later confirmed that defendant had gone to Vietnam on an Air Eva flight that left at 12:30 a.m. on July 30, 2004. The ticket had been purchased through a travel agent the day after the murder, July 28, 2004.
On August 18, 2004, detectives again visited the Nguyen residence in Port Reading, this time with a Middlesex County sheriff's officer who spoke Vietnamese. While police were speaking with defendant's father, Khong, defendant's mother began yelling at Khong in Vietnamese. After they left, the interpreting officer informed the detectives that Nhung had told her husband to shut up, that he was talking too much and had told the police too much.
On August 30, 2004, detectives again spoke with defendant's sister. She told them that defendant had asked to borrow her car on the day of the murder because he and Khuynh had something important to do. At some point in the investigation, the police decided not to have any further contact with defendant's family until they had an opportunity to speak with defendant upon his return from Vietnam.
In November 2004, police received a tip that defendant was coming back to New Jersey on the evening of November 23, 2004, on an Eva Airlines flight into Newark Liberty International Airport. That evening, several law enforcement officials, including Detectives Daniel Baldwin and Lewis DeMeo from the Somerset County Prosecutor's Office, Detective Michael Romanovsky of the Somerville Police Department, and Middlesex County Sheriff's Officer Tan Nguyen gathered at the airport. When the plane arrived, two detectives boarded the plane to meet defendant. They told defendant he was not under arrest but that they would like to talk to him about Tuan's death. Defendant told the detectives he was willing to talk to them and that he had come back to the United States to clear his name. Defendant then accompanied the detectives to the Somerset County Prosecutor's Office. Before they entered the vehicle, Baldwin advised defendant of his Miranda*fn1 rights from a note card.
Upon arrival at the Prosecutor's Office, Baldwin, DeMeo and Romanovsky placed defendant into an interview room. Baldwin again advised defendant of his Miranda rights and had him execute a Miranda waiver form after assuring himself that defendant understood English. Lieutenant Stuart Buckman, who oversaw the investigation, watched defendant's interview on a monitor in his office. As this was a "pre-interview," Buckman was watching the live feed but not recording. The detectives began speaking with defendant about his activities prior to the date of the homicide and following that date.
Initially, defendant denied any involvement with the murder and denied being at the apartment where the murder occurred. However, he eventually stated that he had gone to Tuan's residence on the day of the murder. Once Buckman realized that defendant had placed himself at the scene of the homicide, he began to record the interview.
Over approximately the next two hours, defendant gave various accounts of the events of July 27, 2004. At first, defendant claimed that he had gone to the apartment for documentation so that he could change his driver's license at the Division of Motor Vehicles, to reflect that address as proof of his sham marriage. As questioning continued, Baldwin left the room and DeMeo and Romanovsky continued to speak with defendant, during which the following colloquy occurred:
LD:*fn2 Kha you have to start thinking about this.
LD: It's a, when we were talking, if we start putting all this together and bring it to the grand jury, you're going to jail.