On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-12-1116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Parrillo and Messano.
By our leave granted, the State appeals from the August 21, 2008 order that suppressed defendant Kenneth Weldon's "out-of-court" statement made to police. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.
Defendant was indicted by the Cumberland County grand jury, along with co-defendant Sean Pyfer, for the "home invasion" burglary and robbery of Charles May in Fairfield Township on April 15, 2007.*fn1 At a pre-trial Jackson-Denno-Miranda hearing,*fn2 the State called as its sole witness New Jersey State Police Detective Darren Pulman. Pulman, one of only two detectives assigned to the Port Norris barracks, was off duty when he was specifically summoned to speak to defendant during the early morning hours of April 15. Pulman had a "previous relationship with [defendant]" and when he arrived at the barracks, defendant was already there under arrest. The second perpetrator of the crime, eventually identified as Pyfer, remained unidentified and at-large. Pulman woke defendant, who was sleeping in a holding cell, escorted him into the interview room where another trooper was present, and commenced taping the conversation. The trial judge had the benefit of the audiotape and a transcript prepared therefrom.*fn3
Pulman read defendant his Miranda rights. Defendant acknowledged he understood, and executed a form card evidencing that.*fn4 Pulman initiated the conversation by stating that the victim identified defendant and knew him by name. Pulman also tried to mitigate defendant's involvement in the crime, shifting blame to the other unidentified actor. He told defendant, "I'm just looking for a little cooperation from you as to... when this thing started to go bad  what  happened?" Defendant responded, "I'm not  gonna answer any question[s,]" "[w]ithout speaking to my attorney."
Alright, I respect that Ken, but  just remember this, okay. The decisions you make in this room are going to affect what happens to you and that's fine if you don't want to dime out your buddy, but obviously you know the consequences of  remaining silent[.] [I]t's not like this is... a who done it, it's not like... we don't know what's going on.... [T]he victim ID'd you.... ["]I knew him all my life, its Kenny Weldon.["] He... says, ["]hey its Kenny,["] then the other guy starts acting crazy[.] [S]o... if you don't want to talk, I mean that's fine we'll do what we got to do and we'll be done. We'll put you back in the cell and you'll go to jail, and that'll be it. Alright?
Defendant responded, "[a]lright[,]" and Pulman escorted him back to his cell.
At this point, Pulman "did a little more investigating" of the incident by going to the scene of the crime, the victim's home. Thereafter, defendant was "processed." The formal complaint/warrant charging him with "burglary and robbery" was completed, a Superior Court judge was contacted, and bail was set at $200,000. Pulman returned to defendant's cell to provide him with "his green sheets," i.e., his copies of the complaint, but no further conversation took place between defendant and the detective. Twenty minutes to "a half an hour" later, defendant asked to speak to Pulman. He was brought back to the interview room where Pulman, still unarmed, in plainclothes, and now alone with defendant, again recorded the conversation. The conversation began at 10:26 a.m. and ended twelve minutes later at 10:38 a.m.
Defendant did not ask for anything, but was "bummed out," "upset," and "wasn't happy," having now seen the complaint and the bail set on the charges. Defendant affirmed that no one tried to speak to him since the first interview ended, that he "asked to talk" to Pulman, and that he understood his Miranda rights. Pulman again advised defendant of those rights, and defendant again signed a "Miranda card," after which he supplied incriminating information regarding his involvement in the burglary and robbery.
On cross-examination, Pulman testified that when he arrived at the barracks, he reviewed the investigation of the case to that point. It was "maybe between 5 a.m. and 6 a.m." before he woke defendant up to speak to him. Pulman detected no odor of alcohol on defendant's breath. Pulman knew defendant, had spoken to him on prior occasions when he had been arrested, and had taken a statement from him in the past. Pulman acknowledged that during the initial interview, he "essentially" told defendant that "[n]ot cooperating" would have a negative influence on his ...