On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Baxter.
By leave granted, the State appeals from orders that suppressed two statements by defendant on grounds of a Miranda violation.*fn1 As to the first of the two, the State maintains that despite the imperfect administration of Miranda warnings, the totality of the circumstances established that defendant waived his right to remain silent and the judge erred by concluding otherwise. As to defendant's second statement -- given after a fresh set of complete warnings and an express waiver by defendant of his right to remain silent -- the State asserts that the judge erred by concluding that the conduct in question was an instance of the "question-first, warn-later" interrogation technique the Court prohibited in State v. O'Neill, 193 N.J. 148, 180 (2007). We disagree with the first argument and therefore affirm the order of November 28, 2007. We agree with the second and reverse the order of March 14, 2008.
In Ventnor, on July 24, 2006, a vehicle struck and severely injured a pedestrian. The operator fled on foot. Subsequent investigation, the facts of which are not pertinent to this appeal, caused Ventnor police to take defendant into custody and transport him to headquarters, where defendant took, and failed, a sobriety test. Officer Joseph Fussner then charged defendant with driving while intoxicated, N.J.S.A. 39:4-50.
Immediately after the arrest, Fussner informed defendant of his Miranda rights, using the laminated card he kept in his pocket; however, Fussner read only paragraphs one through six, choosing not to read the seventh paragraph because he did not intend to question defendant at that time.*fn2 The seventh paragraph, the explicit waiver question that Fussner did not read, provides, "Having these rights in mind, do you wish to talk to us now?"
Fussner testified that when he asked defendant whether he understood the rights contained in paragraphs one through six, defendant "stated yes, he did." Fussner then presented defendant with a photocopy of a Miranda card, which specifies that defendant was advised of his rights, understood them, and agreed to waive them. When Fussner asked defendant to sign the card, defendant stated that he would not sign anything at that time; however, defendant did not ask any questions concerning those rights, request an attorney, or state that he did not wish to make a statement. This exchange occurred at 12:47 p.m. on July 24, 2006.
A superior officer then directed Fussner to obtain a blood kit and transport defendant to Shore Memorial Hospital, where defendant's blood would be drawn. Prior to the trip to the hospital, Fussner advised Lt. Michael Miller, also of the Ventnor police department, that defendant had been informed of his Miranda rights. Miller accompanied Fussner in Fussner's patrol vehicle while the two drove defendant to the hospital. No questioning occurred en route.
The record is unclear as to when the three arrived at the hospital. Fussner testified they arrived a little before 2:00 p.m., while Miller testified it was somewhere between 12:15 p.m. and 1:15 p.m. on July 24, 2006. Upon arriving at the hospital, the three entered a small room to await the blood draw. Fussner exited to speak with members of the Prosecutor's office, leaving Miller in the room with defendant. Miller testified that in the twenty minutes that followed, defendant made an oral statement. That statement is the first of the two statements that are the subject of this appeal.
According to Miller's testimony, while he and defendant were in that room, he made no effort to advise defendant of his Miranda rights because he "had been advised that [defendant] had already been Mirandized." According to Miller, when the two entered the room, Miller was silent, but at some point defendant broke the silence, stating he had been merely a passenger in the vehicle and was asleep when the crash occurred. Defendant maintained that the driver fled the scene. Miller responded by telling defendant that he did not believe defendant was telling the truth. Defendant then asked Miller whether the victim had survived. Miller answered in the affirmative, but again confronted defendant, telling defendant he believed he was lying when he insisted he was not the driver.
According to Miller, defendant then said that "he did not mean to hurt anyone" and "was not even suppose[d] to be driving," and also acknowledged he was the driver, and had fallen asleep at the wheel after having consumed two beers. According to Miller, this conversation occurred during the twenty minutes that the two were alone in the room waiting for the blood draw. Miller testified that although defendant's motor skills were impaired, defendant's capacity to understand his Miranda rights and engage in a coherent conversation was not impaired.
Shortly thereafter, a nurse escorted the two to a hospital room, where forty-five minutes later defendant's blood was drawn. According to Miller, he and defendant left the hospital at approximately 2:25 p.m. and began the fifteen-minute drive back to Ventnor police headquarters, where an Alcotest was administered. The Alcotest and the ensuing formal booking consumed nearly an hour. At 3:45 p.m., defendant gave the taped statement that is also the subject of this appeal.
The tape reveals that Miller advised defendant of his rights by administering a complete set of Miranda warnings. On the tape, defendant acknowledged that he understood those rights and wished to give a statement. Miller did not ask defendant to sign a Miranda rights card. In his nine-minute taped statement, defendant admitted that after drinking beer and shots at clubs, he was up all night until falling asleep at the wheel of his vehicle at 11:55 a.m. the next morning. Miller testified that at no time while defendant was at Ventnor police headquarters before or during that taped statement did defendant ever say he did not understand his rights, that he wanted an attorney, or that he would not give a statement.
In an oral decision rendered on November 28, 2007, the judge suppressed the statement defendant gave at the hospital. He found that Fussner had told Miller that defendant refused to sign the Miranda waiver of rights form, and that Miller, aware of that refusal, never asked defendant if he would waive his right to remain silent before questioning defendant at the hospital. Miller "prodd[ed] [defendant] . . . to come clean," which the judge found to be "the functional equivalent" of interrogation. In light of those facts, the judge concluded that the State had failed to satisfy its heavy burden of establishing beyond a reasonable doubt that defendant's statement at the hospital was the product of a knowing and voluntary waiver of his right to remain silent. Consequently, the judge suppressed the statement defendant made at the hospital.
In contrast, the judge rebuffed defendant's effort to suppress the statement he made later that day at Ventnor police headquarters. He held that "the tape recorded statements . . . were made after new Miranda warnings were given and he waived them on tape and gave statements and answered questions." Consequently, the judge concluded that defendant's taped statement would be admissible at trial because defendant "knowingly, intelligently and voluntarily waived any rights ...