On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1321-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2004
Remanded December 27, 2004
Resubmitted November 8, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant, Francis Thomson, appeals from the June 29, 2006 order denying his motion to suppress statements he made to police in which he confessed that he and his brother, co-defendant Daniel Thomson, killed a gas station attendant. Defendant claims the trial judge erred in denying the suppression motion because police failed to honor his assertion of his right to remain silent, which he repeatedly expressed by asking to go home during his interrogation. We affirm.
The evidence the State presented at the suppression hearing disclosed that on August 24, 2001, police responded to the scene of a homicide where George Mekhail's body was found. An autopsy revealed that the victim died as a result of multiple stab wounds. The investigation into the victim's death led police to defendant's brother Daniel, who eventually confessed and implicated defendant. Detectives Robert O'Keefe and Steve Kearney of the Oakland Police Department, along with Sergeant Thomas Dombroski and Detective Gregory Kohles of the Bergen County Prosecutor's Office, proceeded to defendant's home around 12:30 a.m. on September 8, 2001. Dombroski initially spoke with defendant's mother, Marie Miele, because defendant was sixteen years old at the time. Miele, verbally and in writing, consented to a search of her home and the questioning of defendant. Kohles and O'Keefe then transported defendant and his mother to the Bergen County Prosecutor's Office. They arrived at approximately 1:00 a.m. and were escorted to a conference room where the Bergen County Juvenile Miranda*fn1 Rights Form was read by Kohles. Miele testified that she was told the form was just a procedure. Defendant and Miele initialed each section of the form that advised defendant of a constitutional right, signed the form, and consented to waiving defendant's rights.
Defendant was questioned over the next two hours and denied involvement in the homicide. Around 3:13 a.m., Kohles informed defendant that Daniel had confessed to his involvement in the homicide and also implicated defendant. Defendant did not verbally respond to this statement. Miele, however, broke down and requested a break. Following the break, the interview resumed and Kohles told defendant that his brother provided police with the specific details of the victim's death. Defendant again insisted that he was not involved in the killing. Approximately forty-five minutes later, police brought Daniel, who was already in custody, into the interview room, and before being led away, Daniel stated, "Frankie, tell him the truth. I told them Frankie. Frankie, tell them the truth." At this point, defendant and Miele began to cry, the interview stopped, and Miele left the interview room to regain her composure.
When the interview resumed a short time later, defendant confessed to his involvement. Defendant stated that he and Daniel, with their faces covered and armed with knives, went to the gas station to play a prank on a gas station attendant named John. Defendant admitted that when the two arrived at the gas station, they did not see John but did encounter the victim inside the office. The victim pushed defendant out of the office and into the hall, at which time Daniel and the victim engaged in a struggle. Defendant observed that the victim had been stabbed during the struggle, and he confessed that he also stabbed the victim in the back and "possibly could have stabbed him in other places" before he fled from the scene. After the confession, defendant and Miele agreed that he would provide the police with a formal statement. Although Miele took multiple breaks during the interview and experienced several emotional outbursts, neither she nor defendant ever requested that the interview be discontinued.
In contrast to the testimony of the State's witnesses, Miele testified that during the interview, Sergeant Dombrowski, whom she had known for many years due to his friendship with her brother, instructed her to remain quiet, even when she repeatedly asked about Daniel. She recounted that she had words with him during the last break and thereafter walked into the conference room and stated that she was going home. At that point, Daniel was brought into the conference room in an orange jumpsuit, handcuffed and shackled. Miele testified that she then collapsed and repeatedly asked for her brother, ex-husband or an attorney, but her requests were ignored.
The judge denied defendant's motion, finding that Miranda warnings had been properly administered. In addition, the judge found that the investigating officers had not been overbearing during the interview, that defendant's mother had been present and that defendant had "freely and voluntarily, knowingly and intelligently waived [his] right to remain silent."
Thereafter, the court granted the State's motion to prosecute defendant as an adult, and on June 6, 2002, Bergen County Indictment No. S-1321-02 was returned, charging defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); first-degree robbery, N.J.S.A. 2C:15-1 (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and third-degree hindering apprehension, N.J.S.A. 2C:29-3 (Counts Five and Six). On April 30, 2003, defendant entered a conditional guilty plea to an amended charge of aggravated manslaughter (Count One) in accordance with a negotiated plea agreement in which the State agreed to recommend a twenty-year maximum period of confinement and to dismiss the remaining counts in the indictment. Also under the agreement, defendant, pursuant to Rule 3:9-3(f), preserved his right to appeal the denial of his suppression motion. Defendant was subsequently sentenced in accordance with the plea agreement.
Defendant filed a timely appeal. The arguments he raised on appeal included his contention that his statement to police should have been suppressed because the police did not scrupulously honor his right to remain silent. Among the arguments advanced in support of this contention was defendant's reference to his mother's testimony during the suppression hearing that "all night long" he stated, "I want to go home." Defense counsel argued that this statement was the equivalent of an expressed desire to remain silent, requiring investigators to terminate the interview or, alternatively, if the statement was viewed as equivocal, then limiting further questioning to a clarification of defendant's intent. Because the trial court did not render a factual determination of whether defendant made this statement as his mother testified, we remanded the matter "so that the existence or not of a plain or ambiguous ...