July 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
RASHAWN WHITE, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Decided January 15, 2008.
Remanded by Supreme Court -- April 8, 2008.
Resubmitted June 25, 2008
Before Judges Yannotti and LeWinn.
This matter is before us on remand from the Supreme Court for reconsideration of our judgment in light of State v. O'Neill, 193 N.J. 148 (2007).
On May 25, 2004, a Morris County grand jury issued an indictment charging defendant Rashawn White with possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); possession of cocaine with intent to distribute within 500 feet of public housing; N.J.S.A. 2C:35-7.1 (count four); hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4) (count five); and conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1) (count six). Thereafter, the trial court granted the State's motion and dismissed count six.
Prior to trial, defendant moved to suppress two statements that defendant gave to the police. At the suppression hearing, Officer Brett Smith of the Morristown Police Department testified that on the evening of January 15, 2004, he was engaged in surveillance and observed Michael Cheetum and a woman speaking on Flagler Street. From his surveillance spot, which was about five or six feet from where Cheetum and the woman were standing, Smith overheard them say that "nobody's out tonight" and "[h]ave you seen Rob?" Shortly thereafter, Smith heard Cheetum and the woman say, "there he is now." Smith looked across the street and he observed defendant walking along Speedwell Avenue.
Smith said that Cheetum and the woman crossed the street and met with defendant. They began walking down Speedwell Avenue and made a right turn on Early Street. Smith left his surveillance location and, as they turned the corner, he walked across the street and went down an alley that cuts through near Early Street. Smith said that he saw Cheetum, defendant and the woman enter a parking lot behind Pan Pizza, which is at the corner of Speedwell Avenue and Early Street. Smith positioned himself behind a tree.
Smith testified that Cheetum removed United States currency from his pocket. He heard defendant ask whether there were any "cops around[.]" Cheetum replied, "no, just give me the shit." Smith saw defendant remove several objects from his coat pocket. Cheetum handed defendant the currency, and defendant gave Cheetum the "small objects." Smith said that, based on his experience in law enforcement, he believed that the objects were a controlled dangerous substance (CDS) and "it was definitely a [CDS] transaction."
Smith stated that Cheetum quickly started to walk toward Speedwell Avenue and defendant went down Early Street. Smith radioed the dispatcher and the other officers on patrol and told them that he was going to stop Cheetum. Smith informed them of the direction in which defendant was headed.
When Smith got to Speedwell Avenue, Officer Lamperti met him in another vehicle. Smith stopped Cheetum and placed him under arrest. Cheetum was found in possession of three, small, "quarter" bags of cocaine. The patrol officers were unable to locate defendant.
Smith further testified that on January 22, 2004, at around 9:30 p.m., he was on patrol in a police vehicle. He observed defendant walking down Speedwell Avenue toward Headquarters Plaza. Smith turned his vehicle around to see where defendant was going. He observed defendant enter Headquarters Plaza. Inside, Smith saw defendant walking down the hallway. Smith believed that defendant was headed toward Bennigan's, which was located inside the building. Smith went to Bennigan's and observed defendant sitting at the bar.
Smith testified that he wanted to speak to defendant and tell him what he had seen on January 15th. Smith wanted to get some information from defendant such as his name and where he lived. Smith approached defendant, with Officers Jackson and Kraus. He asked defendant his name and defendant replied, "Shondell Davis." Smith continued to speak with defendant while Jackson radioed the name of "Shondell Davis" to the dispatcher. Smith learned that "there was no such person" with that name in the computer system.
According to Smith, Bennigan's was crowded. Smith told defendant that he was not under arrest and asked him if he would step outside to speak to the officers. Smith testified that defendant "complied and [they went] outside." Smith stated that he wanted to ascertain defendant's name. He said that he intended to tell him what he had observed on January 15th and "see what [defendant] had to say." Smith said that he "wanted to get some information to [establish] probable cause to get an arrest warrant."
Smith, defendant and the two officers went out into the hallway. Smith told defendant what he had seen on the night of January 15th. He advised defendant that "it would be in his best interest to tell [him] the truth." According to Smith, defendant put his head down and "kind of just shook his head." Defendant asked whether Smith would help him out if he told him the truth.
Smith told defendant that if he told the truth, "things would go better, a lot better[.]" Defendant said "all right[.]" He admitted that he was the person Smith had seen behind Pan Pizza but said that he was "no big time dealer." Defendant told Smith, "I dabble in it a little bit but that's all." Smith said that the conversation lasted less than five minutes.
Smith placed defendant under arrest and he was taken to police headquarters. Smith provided defendant with a "rights form" and he signed it as "Shondell Davis." Defendant signed the waiver of rights card at 10:35 p.m. Defendant then provided a statement in which he said that "a guy" had approached him and threatened him "for drugs[.]" Defendant stated that he "had to give" the man drugs that he had purchased for his own use. Thereafter, the man left, and he left. Defendant said that the transaction took place behind Pan Pizza.
The trial judge placed his decision on the record. He noted that defendant's motion to suppress involved two statements: the statement at Bennigan's and the statement at police headquarters. The judge found that the statement that defendant gave to the police officers at Bennigan's should be suppressed because, although Smith told defendant that he was not under arrest, in the circumstances, a reasonable person would believe that he was in custody. The judge concluded that defendant should have been informed of his Miranda rights*fn1 at that point.
The judge concluded, however, that the statement that defendant gave at police headquarters was admissible. The judge noted that defendant had been informed of his right to remain silent and his right to counsel. He chose to waive those rights and make a statement. The judge also noted that defendant was aware that he had been seen engaging in a CDS transaction. He told the police that he had acquired the drugs for his own personal use. The judge found that, by giving the police the statement, defendant was endeavoring to protect himself and secure lenient treatment.
The judge rejected defendant's contention that his second statement was tainted by the officer's failure to provide him with his Miranda warnings before he gave the first statement. The judge observed that the admissibility of defendant's second statement turned upon whether defendant's free will had been overborne and whether defendant made an intelligent, knowing and voluntary waiver of his constitutional rights.
The judge found that defendant's statement indicated that defendant was thinking clearly, understood his position, was not overwhelmed, coerced or under any duress "other than the fact that he knows . . . that he was witnessed . . . conducting a drug transaction." The judge stated that he was "satisfied beyond a reasonable doubt" that defendant had knowingly, willingly, voluntarily, and intelligently waived his constitutional rights when he provided his statement at police headquarters.
Thereafter, defendant was tried to a jury, which found him guilty on counts one through five of the indictment. The judge merged count one with counts two, three and four; count two with counts three and four; and count three with count four. On count four, the judge sentenced defendant to a six-year term of incarceration, with a three-year period of parole ineligibility. On count five, the judge sentenced defendant to 393 days of incarceration, with credit for 393 days of time served.
Defendant appealed and raised the following arguments for our consideration:
BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART I. PARS. 1, 9 AND 10.) (Not Raised Below).
SINCE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION PRIOR TO THE ADMINISTRATION OF MIRANDA WARNINGS, ANYTHING INCRIMINATING HE TOLD THE POLICE WHICH DERIVED THEREFROM SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. U.S. CONST. AMENDS. V, XIV.
DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF OFFICER SMITH, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION (Not Raised Below).
THE TRIAL COURT'S FAILURE TO DELIVER A DURESS INSTRUCTION ON THE SECOND, THIRD, AND FOURTH COUNTS OF THE INDICTMENT WAS PLAIN ERROR REQUIRING REVERSAL (Not Raised Below).
The State filed a cross-appeal in which it raised the following argument:
DEFENDANT'S SENTENCE FOR THIRD DEGREE HINDERING IS ILLEGAL.
The State argued that the trial judge erred by sentencing defendant to a 393-day term of imprisonment, instead of a term of between three and five years, for defendant's conviction of third-degree hindering, as charged in count five.
We affirmed defendant's convictions and the sentences imposed on counts one through four, but reversed the sentence imposed on count five and remanded the matter to the trial court for imposition of a sentence on count five within the range prescribed by N.J.S.A. 2C:43-6a(3). State v. White, No. A-1808-05T4 (App. Div. January 15, 2008).
Thereafter, defendant filed a petition for certification with the Supreme Court. By order entered on April 8, 2008, the Court granted defendant's petition, limited to the issue of whether the statement that defendant provided to the police while in custody should have been suppressed. The Court remanded the matter to this court for reconsideration in light of State v. O'Neill. Thereafter, we ordered the parties to file supplemental briefs addressing the issue before us on remand.
In State v. O'Neill, the Union City police and the Hudson County Prosecutor were investigating the killing of a taxi cab driver in Hudson County. Id. at 154. O'Neill had been arrested on an outstanding warrant that was unrelated to the homicide, and he was being held in a cell at police headquarters in Harrison, New Jersey. Id. at 155. Detectives from the Union City police department and the County Prosecutor's office went to Harrison to question O'Neill. The detectives had information that O'Neill was in possession of a handgun "within the timeframe of [the] homicide." Ibid.
The detectives went to O'Neill's holding cell. They did not inform O'Neill of his Miranda rights but asked him about his whereabouts in the timeframe in which the cab driver was killed. Ibid. O'Neill gave the detectives inconsistent statements about his whereabouts. Initially, he denied that he was in the area of the tavern where the cab driver had picked up his last passenger but then conceded that he had gone to the tavern to meet a friend. Id. at 156. After about twenty minutes of questioning, the detectives moved O'Neill from his cell to a commander's office. Ibid.
The detectives questioned O'Neill for another hour and fifteen minutes. He told them that he had gone to the bar to purchase marijuana from a person named "V" who was there with another male. Ibid. O'Neill stated that "V" instructed him to take the next available taxi to a location in Kearny. Ibid. O'Neill indicated that he thought "V" and his friend planned to rob the cab driver after O'Neill "lured him to the intersection." Ibid.
At that point, the detectives gave O'Neill the Miranda warnings. Ibid. O'Neill read a form which detailed his rights. He signed the form, acknowledging that he had been informed of his rights and waived those rights. Ibid. O'Neill then completed his account of the plan to rob the cab driver. Id. at 156-57. O'Neill said that he entered the taxi and asked the driver to take him to the location in Kearny but the driver was unable to find the location and O'Neill exited the taxi. Id. at 157.
Approximately thirty-five minutes after receiving the Miranda warnings, O'Neill gave a taped statement to the detectives. Ibid. He was again informed of his Miranda rights. O'Neill repeated many of the statements he gave to the detectives before he was given the Miranda warnings. Ibid. O'Neill again stated that he had abandoned the plan to rob the driver after the driver got lost. Ibid.
The detectives continued to question O'Neill off-tape after a ten-minute break. Id. at 158. The detectives then transported O'Neill to the prosecutor's office. Ibid. After arriving there, the detectives were told that the homicide unit had secured a bloodstained black jacket and black glove that reportedly had been worn by O'Neill. Ibid. The detectives confronted O'Neill with this evidence and he admitted, "[o]kay, you got me. It was an accident[.]" Ibid. Thereafter, O'Neill gave a thirty-minute taped statement admitting that he shot the cab driver. Id. at 159-60. O'Neill said that the gun had discharged accidentally and he did not intend to rob or kill the driver. Id. at 160.
In O'Neill, the Court considered whether the two-step interrogation procedure violated the defendant's privilege against self-incrimination. Id. at 176. The Court chose to decide the issue based on state law rather than the Fifth Amendment to the United States Constitution because "[t]he shifting sands of federal jurisprudence" did not provide sufficient certainty to provide guidance to our state's courts and law enforcement. Id. at 175. The Court additionally noted that it had interpreted "our state law privilege to grant broader rights than those available under the Fifth Amendment." Id. at 176 (citing State v. Reed, 133 N.J. 237, 251-52 (1993)).
The Court stated that "[u]ltimately, the question is whether the belated giving of the Miranda rights to a suspect will serve as a firewall between the warned and unwarned statements." Id. at 180. The test is "whether in the setting of a two-stage interrogation, the Miranda warnings gave the defendant a meaningful opportunity to exercise his rights." Ibid. The Court stated:
Therefore, as a matter of state law, we hold that when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination. In making that determination, courts should consider all relevant factors, including: (1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the preand post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning. The factual circumstances in each case will determine the appropriate weight to be accorded to any factor or group of factors. [Id. at 180-81.]
The Court added that if the police inform a suspect that his pre-warning statements could not be used against him, "great weight" should be accorded to that factor. Id. at 181. Providing that information to a suspect "would strongly suggest that the defendant made any post-warning incriminating statements knowingly, voluntarily, and intelligently." Id. at 181 (citing Missouri v. Siebert, 542 U.S. 600, 616, 124 S.Ct. 2601, 2612, 159 L.Ed. 2d 643, 658 (2004)). "However, the failure to give that instruction will not automatically render the defendant's post-Miranda statements inadmissible." Ibid. (citing Siebert, supra, 542 U.S. at 616, n.7, 124 S.Ct. at 2612, n.7, 159 L.Ed. 2d at 658, n.7).
The O'Neill Court made the following additional observations:
We emphasize that we are not pronouncing a bright-line rule. For example, if the officers' pre-warning questioning is brief and the defendant's admissions are not incriminating or are barely incriminating and if there is a substantial break in time and circumstances between the pre- and post-warning interrogations, then those factors would militate against suppression of the defendant's statements. Another circumstance that may be considered is the defendant's prior experience with the criminal justice system. In a two-step interrogation case, courts must view the totality of circumstances in light of the relevant factors and then determine whether the unwarned questioning and admissions rendered the Miranda warnings ineffective in providing a defendant an opportunity to exercise the privilege. [Id. at 181-82.]
The Court then determined that the defendant's post-warning statements were not admissible. The Court noted that O'Neill had been questioned by the same detectives over a six-hour period, with few breaks. Id. at 182. "The questioning occurred in a police-dominated atmosphere with defendant in custody at both police headquarters and the prosecutor's office." Ibid. The detectives questioned O'Neill for ninety-five minutes without giving him the Miranda warnings, even though the detectives had information that O'Neill was in possession of a gun at the time of the homicide and considered O'Neill "to be a person of interest[.]" Ibid. The detectives only provided the Miranda warnings after O'Neill had admitted some involvement in the scheme to rob the cab driver. Ibid. That occurred one hour and thirty-five minutes into the interrogation, after the "defendant had delivered to the detectives a motive, opportunity, and personal involvement in a crime that the detectives were able to exploit in further questioning defendant." Ibid.
The Court noted that, when the detectives gave O'Neill the Miranda warnings, they failed to tell him that his prior incriminating statements could not be used against him at trial. Id. at 183. The Court stated, "[w]ithout such an assurance, defendant might fairly have concluded that it would have been futile to keep silent after having made a damning admission." Ibid. The Court concluded that, "[b]ecause the detectives gave Miranda warnings midstream and did not mention the inadmissibility of his prior incriminating statements, defendant lacked sufficient information needed to make a knowing, voluntary, and intelligent waiver of the privilege." Ibid.
Considering the O'Neill factors, we are convinced that the trial court erred by concluding that defendant's second statement was admissible.*fn2
Here, the questioning of defendant before he was informed of his Miranda rights was brief. Defendant spoke to Smith for less than five minutes before he admitted that he was behind the Pan Pizza on the night of January 15th, that his name was "Shondell White," he was not "a big time dealer," and "only dabble[s] in it a little bit."
The pre-warning questioning took place at 9:30 p.m. in the hallway outside of Bennigan's in Headquarters Plaza. Although the pre-warning questioning did not take place in a police station, it was nevertheless police dominated. Defendant was questioned by Smith in the presence of two other officers. The trial judge found that, in effect, defendant was in custody.
Defendant was arrested and taken to police headquarters. He was informed of his Miranda rights and signed the waiver of rights card at 10:35 p.m. In his post-warning statement, defendant indicated that someone had approached and threatened him "for drugs." Defendant insisted that he "had to give" that individual the drugs he had purchased for his "own personal use."
Smith conducted both the pre-warning and post-warning questioning. It is fair to say that the post-warning questioning was a continuation of the questioning that began outside of Bennigan's, although an hour passed between the pre-warning and post-warning questioning.
The record establishes that Smith did not inform defendant that the statements he made outside of Bennigan's could not be used against him. This factor must be given "great weight" in our analysis. Id. at 181. The record also establishes that, when defendant was questioned by the police, he had already had considerable involvement with the criminal justice system. Defendant was twenty-six years old at the time. He had numerous prior arrests. He also had prior felony convictions.*fn3
Moreover, as the trial judge noted, defendant gave his statements to the police after being told that "things would go better" for him if he told the truth. In his post-warning statement, defendant apparently was endeavoring to convince the police that he only possessed the CDS for his personal use and only gave the drugs to the other person after being threatened.
Based on our consideration of the totality of circumstances, we conclude that defendant's post-warning statements were not made following a knowing, intelligent and voluntary waiver of his Miranda rights. We recognize that, at the time defendant was questioned by the police, he had considerable experience with the criminal justice system. We also recognize that the pre-warning questioning by the police took place in circumstances substantially less intimidating that those presented in O'Neill. Nevertheless, as a result of the pre-warning questioning, defendant made incriminating statements that thereafter rendered him incapable of effectively exercising his Miranda rights.
As noted previously, the officers did not inform defendant that his pre-warning statements could not be used against him. Therefore, when the officers later provided defendant with his Miranda warnings, defendant could reasonably have believed that it would be futile to remain silent, after having already admitted that he sold drugs to another individual outside of Pan Pizza on January 15th. In the circumstances, defendant did not have sufficient information to make a knowing and intelligent waiver of his rights.
The trial judge stated that defendant's post-warning statement shows that he knowingly and voluntarily waived his Miranda rights. The judge noted that defendant knew that he had been seen selling drugs. The judge also noted that, in the post-warning statement, defendant was endeavoring to exonerate himself from a distribution charge and secure lenient treatment.
That may be so, but this does not mean that defendant knowingly and voluntarily exercised his Miranda rights. Suffice it to say, had defendant not given the pre-warning statement, he would not have been in a position where he would need to explain the circumstances under which the drug transaction took place or to seek leniency.
In short, defendant's pre-warning statement rendered the subsequent Miranda warnings ineffective. The warnings did not provide defendant with an opportunity to exercise his privilege against self-incrimination. Therefore, the post-warning statement should not have been admitted into evidence. Moreover, because defendant's post-warning statement was a key part of the prosecutor's case, the admission of that statement was not harmless error. O'Neill, supra, 193 N.J. at 184. Accordingly, defendant's convictions must be reversed and the matter remanded for a new trial.
Reversed and remanded for a new trial.