September 7, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN MICHAEL YOHNNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1319.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges C.S. Fisher and Grall.
In this appeal, defendant argues that his motion to suppress incriminating statements should have been granted, rather than denied, because he was interrogated by police prior to being fully advised of his Miranda*fn1 rights, and after he had invoked his right to counsel and his right to remain silent. Since the judge's findings do not thoroughly describe what occurred before the police advised defendant of his Miranda rights, we remand.
Defendant was indicted and charged with four counts of first-degree robbery, N.J.S.A. 2C:15-1(a). Following the denial of a motion to suppress his incriminating statements, which lies at the heart of this appeal, the State agreed to amend two of the counts to second-degree robbery. Defendant then pled guilty to the charges as amended, reserving his right to appeal from the denial of his motion to suppress. The trial judge sentenced defendant to fifteen-year terms of imprisonment with an 85% period of parole ineligibility on the first-degree robbery counts, and seven-year terms of imprisonment with an 85% period of parole ineligibility on the second-degree robbery counts. All these terms were ordered to run concurrently.
Defendant appealed, and now presents the following arguments for our consideration:
I. THE TRIAL COURT DENIED [DEFENDANT'S] MOTION TO SUPPRESS HIS CONFESSION BASED ON ITS CREDIBILITY RULING, EVEN THOUGH CREDIBILITY WAS NOT DISPOSITIVE OF ALL THE ISSUES THE DEFENSE RAISED, THE STATE FAILED TO REBUT ALL OF [DEFENDANT'S] CLAIMS, AND THE STATE'S EVIDENCE ACTUALLY SUPPORTED ONE OF HIS CLAIMS.
A. Detective Gillen Engaged In The Functional Equivalent Of Custodial Interrogation By Pressuring Defendant To Confess, Before He Had Been Advised Of And Waived The Miranda Rights, And After Defendant Had Refused To Answer Questions In The Absence Of An Attorney.
B. [Detective] Mikulski Also Subjected [Defendant] To Custodial Interrogation Before Administering The Miranda Warnings And Obtaining A Valid Waiver Of The Miranda Rights.
After careful examination of the record, we vacate the order denying the suppression motion and remand for further proceedings.
At the Miranda hearing, the judge heard the testimony of both Detective Anthony Mikulski and defendant. Detective Mikulski testified that, on August 18, 2004, between 10:30 a.m. and 11:00 a.m., a Dunkin' Donuts in Maple Shade was robbed by a person who left the scene in a blue truck. Soon thereafter, the police received a call that a person was seen "shooting up" drugs in a blue truck parked behind a nearby pizzeria. Defendant was located and taken into custody at approximately 3:15 p.m. Detective Mikulski testified that defendant was arrested because of outstanding arrest warrants emanating from Camden, although the police also believed he had committed the robbery of the Dunkin' Donuts that morning, as well as others.
Upon his arrest, defendant was placed in a squad car. The State does not dispute that the advice then given to defendant regarding his constitutional rights was defective because the officer informed defendant only of some of his Miranda rights. Defendant was taken to the police station in Maple Shade and placed in a cell pending Detective Mikulski's arrival. Neither Detective Mikulski nor Detective O'Donnell advised defendant of his Miranda rights when they began questioning him at approximately 4:00 p.m.
Detective Mikulski initially conducted what he referred to as a "preinterview"; that is, he laid "some groundwork" about "some robberies," which included a description for defendant of "some of the more broader details" and what the police "knew about the robberies." This "preinterview" -- the specifics of which were not otherwise revealed during the Miranda hearing --lasted approximately two hours and forty-five minutes. Detective Mikulski testified that defendant denied any involvement in the robberies and that, toward the end of the nearly three-hour "preinterview," defendant advised he did not want to speak further with the police without counsel. Detective Mikulski testified that he honored this request, although it is not disputed that the police did not provide defendant with the means or opportunity to contact an attorney. Detective Mikulski did, however, accede to defendant's request for a cigarette break.
Detective Gillen, the only officer in the building who smoked, escorted defendant outside the building where defendant was allowed to smoke a cigarette. No one else was present during this five-minute episode.
Detective Mikulski testified that, upon his return to the interrogation room, defendant immediately stated that he wanted to speak to the police. Detective Mikulski responded that because defendant had invoked his right to an attorney, he would not speak to him further. When defendant allegedly persisted, Detective Mikulski responded that to discuss the matter further he would have to advise defendant of his rights. As a result, for the first time that day, defendant was fully advised of his Miranda rights; he also then executed a written waiver of those rights. The time was 6:54 p.m.
An unrecorded discussion about the robberies occurred over the next three hours. Detective Mikulski testified that he and Detective O'Donnell took notes of what was then discussed; he also testified that their notes were later destroyed. The police station's audio-visual equipment was not turned on until 10:09 p.m., at which time defendant admitted his commission of the robberies in question.
Law enforcement personnel are obligated to inform a person in custody of the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel. Miranda does not suggest that this obligation is merely a perfunctory or superficial exercise. The failure to scrupulously honor an accused's Miranda rights may lead to the suppression of incriminating responses. See, e.g., State v. Bey, 112 N.J. 45, 69 n.14 (1988); State v. Ward, 240 N.J. Super. 412, 419 (App. Div. 1990).
"[T]he modern practice of in-custody interrogation is psychologically rather than physically oriented." Miranda, supra, 384 U.S. at 448, 86 S.Ct. at 1614, 16 L.Ed. 2d at 708. Accordingly, Miranda's safeguards "come into play whenever a person in custody is subjected to either express questioning or its functional equivalent," Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed. 2d 297, 308 (1980), which would include an officer's "general discussion about the victim," State v. Bey, supra, 112 N.J. at 68 n.3, or a generalized discussion relating to an investigation, ibid. (citing, with approval, Christopher v. Florida, 824 F.2d 836, 845 (11th Cir. 1987)).
In State v. Brown, 282 N.J. Super. 538, 549-55 (App. Div.), certif. denied, 143 N.J. 322 (1995), we held that the functional equivalent of interrogation occurred when an officer responded to the defendant's inquiry as to why he had been arrested with a forty-five to sixty minute account of the evidence that implicated the defendant. We reached this same conclusion when an officer confronted a defendant in his jail cell, told the defendant of a robbery and of the formal charges against defendant, and then showed the defendant pictures of two other persons who had been arrested in connection with the robbery. State v. Ward, supra, 240 N.J. Super. at 419. In both Brown and Ward we reversed the denial of the motions to suppress the incriminating statements that followed.
In short, because the police approach in obtaining information is as much psychological as it is inquisitorial, the type of police communications that must be preceded by Miranda warnings is not governed solely by whether the discussion takes the form of questions and answers, or a dialogue, nor limited to any other methodology. Rather, an accused is subject to interrogation when the police should have known that their words or actions "were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. at 303, 100 S.Ct. at 1690, 64 L.Ed. 2d at 308. See also State v. Stott, 171 N.J. 343, 365 (2002). Certainly the obligation to provide Miranda rights is not something that the police may withhold until they believe an accused is ready to incriminate himself. An accused is entitled to be informed of these rights prior to any interrogation. And defendant's invocation of any of these rights must thereafter be "scrupulously honored." State v. Bey, supra, 112 N.J. at 69 n.14; State v. Ward, supra, 240 N.J. Super. at 419.
Here, Detective Mikulski testified that he engaged in what he referred to as a "preinterview," which included not only the obtaining of defendant's "name and so forth", but which also laid the "groundwork" for his interrogation of defendant by his presentation of a broad outline of the robberies in question. He testified that this discussion lasted for two hours and forty-five minutes. In light of the sketchy testimony, and the judge's incomplete findings about this "preinterview," we cannot presently say whether this lengthy discussion amounted to interrogation of the type that must be preceded by Miranda warnings. As we have observed, the question is whether the words or actions of the police were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, supra, 446 U.S. at 303, 100 S.Ct. at 1690, 64 L.Ed. 2d at 308; State v. Stott, supra, 171 N.J. at 365. Even though the judge found that no incriminating statement was made by defendant during this time period, the police were still required to "scrupulously honor" defendant's right to counsel and his right to remain silent, and, failing that, the incriminating statement that later followed could potentially be viewed as "fruit" of that failure and therefore suppressed. State v. Bey, supra, 112 N.J. at 71; State v. Hartley, 103 N.J. 252, 278-84 (1986).
Miranda not only requires that interrogation must immediately stop once an accused asserts his intention to remain silent, but that interrogation must also cease once the accused asserts his right to counsel. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed. 2d 378, 384 (1981). On remand, the judge must determine with greater specificity the content of the two-hour-and-forty-five-minute "preinterview," decide whether defendant's rights were "scrupulously honored," and determine whether what followed is tainted by any preceding, inappropriate police procedures.
Consideration must also be given to the brief cigarette break that followed soon after Detective Mikulski's so-called "preinterview." In this regard, defendant testified that he knew Detective Gillen from a 1997 incident. He described his cigarette break with Detective Gillen in the following testimony:
A: We proceeded to go outside to have the smoke break and then he went ahead to inform me that they had the fingerprints of me on the Dunkin' Donuts handle and he also informed me that he helped me out before, that he will help me out again and that, you know, whether he was indirectly or directly involved in this case, he could have a say in what happens and he informed me about pretty much what they already had against me.
Q: Okay. And did he give you any recommendations as far as what you should do?
A: Yeah. He said, he said say whatever you have to say because, you know, he said that they had the fingerprints, they had the truck, they had a partial description of somebody looked exactly like me and there's probably, there was probably quite a bit more said that I just can't recollect right now.
Q: Did he talk to you about whether or not you should speak with the detectives who were investigating the robbery?
A: Yes, he did.
Q: And what did he say?
A: He said I should speak with them and tell them if I have any involvement in this case, which his mind was already made up that I was because they said they had my fingerprints and, you know, this, that, and the other thing.
Although the judge made general findings that Detective Mikulski was a credible witness and defendant was not, the judge made no specific findings regarding what was said during this cigarette break or whether the words or actions of Detective Gillen breached the police's obligation to scrupulously honor defendant's prior invocation of his right to counsel and his right to remain silent.
We normally defer to credibility findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), because trial judges and not appellate judges have the opportunity to see and hear the witnesses testify. But the judge's credibility finding was made without his having heard the testimony of Detective Gillen, the only other individual present during the cigarette break. Accordingly, the judge's rejection of defendant's version of what was then said does not enlighten us about what actually occurred during that discussion. And the judge's finding that Detective Mikulski was a credible witness adds nothing to this determination since Detective Mikulski was not present during the cigarette break.
We also observe that the judge apparently did not consider or determine whether an adverse inference should have been drawn due to the State's failure to call Detective Gillen. See, e.g., State v. Clawans, 38 N.J. 162, 170-71 (1962). In addition, if dissatisfied by the fact that the only evidence regarding the nature and content of the cigarette break discussion came from a witness unworthy of credit, the judge could have insisted upon the presentation of Detective Gillen's testimony. See N.J.R.E. 614. Had he done so, the judge could have determined whether Detective Gillen would corroborate or dispute defendant's version of what was then discussed.
The "facts and circumstances of every custodial interrogation must be examined carefully and pragmatically" to determine whether an accused's rights to remain silent and to counsel are respected. State v. Bey, supra, 112 N.J. at 69 n.14. Here, the judge made no findings regarding the content of the cigarette break discussion, nor determined whether defendant was interrogated at that time. The judge also did not consider the State's failure to provide the testimony of Detective Gillen, and did not compel that testimony despite its obvious importance.
For these reasons, we remand for further proceedings regarding defendant's motion to suppress his incriminating statements. The judge should make thorough findings regarding the specific content of both the "preinterview" and the cigarette break. He should determine whether defendant was subjected to interrogation or its functional equivalent prior to being advised of his Miranda rights at 6:54 p.m., and he should also consider whether any failure to scrupulously honor defendant's constitutional rights warrants the exclusion at trial of defendant's subsequent statements by applying the principles set forth by the Court in State v. Bey, supra, 112 N.J. at 66-74.
We caution that not every breach requires exclusion. As has been held, an initial failure to comply with Miranda is not always "irremediable." Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed. 2d 222, 232 (1985); State v. Bey, supra, 112 N.J. at 71; State v. Hartley, 103 N.J. at 274-76. But there is no question that an accused's exercise of either or both of his rights to remain silent and to counsel requires that interrogation cease. See, e.g., Edwards v. Arizona, supra, 451 U.S. at 482, 101 S.Ct. at 1883, 68 L.Ed. 2d at 384; State v. Bey, supra, 112 N.J. at 64 n.8. Since the State does not dispute that defendant had invoked his right to speak no further with the police until an attorney was present prior to the cigarette break, the proceedings on remand should closely examine the discussion between Detective Gillen and defendant during that short period of time. The judge must determine whether Detective Gillen engaged in the functional equivalent of interrogation and whether his discussion with defendant represented a failure to scrupulously honor defendant's constitutional rights. If so, the judge must determine whether defendant's subsequent waiver of his rights to counsel and to remain silent were voluntarily rendered and whether the incriminating statements that followed were tainted by any prior inappropriate police conduct. See State v. Bey, supra, 112 N.J. at 71.
To summarize, we conclude that the judge's findings do not encompass or otherwise adequately reveal whether defendant was interrogated during the two-hour-and-forty-five-minute "preinterview" or the ensuing short cigarette break. In the absence of such findings, we are in no position to endorse the judge's conclusion that defendant voluntarily waived his rights to counsel and to remain silent prior to confessing. We vacate the order denying defendant's motion to suppress his incriminating responses, and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.