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State v. Yohnnson


May 19, 2009


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1319.

Per curiam.


Argued April 1, 2009

Before Judges Fisher and C.L. Miniman.

When first before us, we remanded this matter for further inquiry into whether defendant's rights to counsel and to remain silent were "scrupulously honored."*fn1 The trial judge thereafter heard additional testimony and provided supplemental findings. Because of, among other things, the near three-hour custodial interrogation, which preceded the instructions required by Miranda,*fn2 we conclude the State failed to prove the voluntariness of defendant's waiver and confession beyond a reasonable doubt.


Defendant was charged with four counts of first-degree robbery, N.J.S.A. 2C:15-1a. Following the denial of his motion to suppress incriminating statements he made while in custody, the State agreed to amend two of the counts to second-degree robbery. Defendant pled guilty to the amended charges, reserving his right to appeal the denial of his suppression motion.

The trial judge sentenced defendant to fifteen-year prison terms on the first-degree robbery charges and to seven-year prison terms on the second-degree robbery counts; these terms were subject to an 85% period of parole ineligibility and ordered to run concurrently.

Defendant appealed, arguing that the trial judge erred in denying his suppression motion. As mentioned, we remanded for further findings, and the judge heard additional testimony and filed a written decision stating the reasons for his denial of the suppression motion.

Defendant appealed again, arguing:





We now reverse and direct the entry of an order suppressing the confession and, as a result, vacate the judgment of conviction and remand for trial.


Our examination of the issues regarding defendant's confession starts with the fact that a Dunkin' Donuts in Maple Shade was robbed on August 18, 2004, between 10:30 a.m. and 11:00 a.m., by a person who departed in a blue truck. Soon thereafter, police received a call that a person was seen "shooting up" drugs in a blue truck parked behind a nearby pizzeria. The blue truck in question was later located and stopped by a member of the Maple Shade police department. Although the police suspected that defendant, who was the driver of the blue truck, was responsible for the Dunkin' Donuts robbery, as well as another robbery in Maple Shade and two in Moorestown, defendant was arrested as a result of one or more unrelated warrants.

Upon his arrest at 3:15 p.m., defendant was placed in a squad car. There is no dispute that the warnings then given to defendant were inadequate; he was only partially advised of his Miranda rights.*fn3 Upon arrival at the police station, defendant was placed in a cell pending the arrival of Detective Anthony Mikulski of the Maple Shade Police Department. Detective Mikulski, along with Detective Wayne O'Donnell of the Moorestown Police Department, who was interested in obtaining information about the robberies in his municipality, began questioning defendant at 4:00 p.m., without providing Miranda warnings.

As we observed in our opinion in the prior appeal, the events that led to defendant's incriminating statements are best described by reference to three different stages. In the first, Detective Mikulski conducted what he referred to as a "preinterview." At some point, defendant made a statement that Detective Mikulski interpreted as an invocation of his right to counsel; interrogation was at some point halted, although defendant expressed an interest in continuing to speak with Detective Mikulski.

The second stage, in which defendant was permitted to smoke a cigarette outside the building, immediately followed. At that time, defendant was accompanied by Detective Joseph Gillan; he and defendant briefly spoke during the few minutes they were together. Following the cigarette break, defendant insisted upon speaking with Detective Mikulski without counsel. He was then Mirandized and waived his rights to counsel and to remain silent.

Defendant's waiver commenced the third stage, which included an unrecorded discussion of approximately three hours.

At 10:09 p.m., after defendant had been in custody for more than six hours, and with little or no break from police interrogation, the department's recording equipment was turned on and defendant provided a confession.

Whether constitutional principles require the suppression of the confession necessitates a fuller understanding of what occurred during these three stages.

A. The Preinterview

At 4:00 p.m., without advising defendant of his Miranda rights, Detective Mikulski conducted his "preinterview," during which 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." State v. Yohnnson, No. A-3406-05T4 (App. Div. September 7, 2007) (slip op. at 4). Because "the specifics of [the preinterview] were not otherwise revealed during the Miranda hearing," ibid., the testimony regarding the preinterview was "sketchy," and the judge's findings were "incomplete," id. at 8, we remanded so the judge could "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 [was] tainted by any preceding, inappropriate police procedures," id. at 9.

Following our remand, the trial judge permitted additional testimony from Detective Mikulski. However, no greater detail was provided as to the content of the "preinterview," prompting the judge to make the following findings, which are no more specific than his earlier findings:

Approximately forty-five minutes after defendant's arrest, Detective Mikulski began speaking with defendant under the mistaken belief that [the arresting officer] had fully "[M]irandized" defendant and the warnings were captured on the vehicle's mobile vision tape. Detective Mikulski conducted a two hour and forty-five minute "pre-interview" during which the detective "laid the groundwork" of some of the more broad details of the robberies and explained that the police would like to talk to defendant regarding these incidents. Throughout this "pre-interview," Detective Mikulski did most of the talking and defendant denied his involvement throughout the entire "pre-interview." Importantly, defendant was aware that he did not have to speak with the police, and acknowledged that at no time during the "pre-interview" did he make any statement regarding "the situation that [defendant] was in."

Finally, defendant advised that he did not want to speak further with police without counsel. Stating that his uncle had previously told him whenever he speaks to the police to always have a lawyer present. Defendant never actually stated he wanted to cease talking to police until a lawyer was obtained; however, Detective Mikulski determined that defendant's statement regarding his uncle was an invocation of his right to counsel. At that point, Detective Mikulski informed defendant that [the] interview was terminated until he obtained counsel*fn4. Defendant indicated that he still wished to speak to the detective regarding the incident, but the detective reiterated that because defendant invoked his right to counsel, he could no longer speak with the defendant until a lawyer was present. Defendant then asked if he could have a cigarette. Detective Mikulski acceded to this request.

These findings are hardly different and certainly no more specific than the judge's earlier findings. This is no fault of the judge's; Detective Mikulski's testimony on both occasions provided only broad strokes. And, although Detective O'Donnell was present for parts of the preinterview, the State never called him as a witness -- either during the original Miranda hearing or the later hearing prompted by our remand -- to provide any detail that Detective Mikulski was incapable of providing.

B. The Cigarette Break

As we noted in our earlier opinion, defendant was permitted to smoke outside the building. He was accompanied by Detective Gillan. Defendant testified at the Miranda hearing that the following occurred during the cigarette break:

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.

Detective Gillan did not testify at the original Miranda hearing.

In his earlier decision, the trial judge concluded defendant was not a credible witness. We observed at that time that a rejection of defendant's credibility did not necessarily permit a finding that the opposite of what defendant said was true. Instead, the rejection of defendant's credibility only created a vacuum and left the judge without any credible testimony to ascertain what actually occurred during the cigarette break. We held that the judge could have avoided this by calling Detective Gillan as a witness, even if the State chose not to, or he could have drawn an adverse inference against the State. We, thus, remanded for further findings regarding what took place during the cigarette break.

Following our remand, the trial judge heard the following testimony from Detective Gillan. The State asserts that Detective Gillan was not "directly involved" in the investigation,*fn5 but it does acknowledge that Detective Gillan knew defendants' parents and Detective Gillan testified that he knew defendant "from around town." Detective Gillan gave the following testimony regarding the cigarette break:

Q: Was there a conversation between the two of you?

A: Yes. I believe he indicated that I had helped him out once before and he was kind of feeling a little bit down. He said he had a bad drug problem and several failed attempts to get clean[]. He disappointed his parents.

Q: Did you say anything to him concerning the robberies at the Dunkin Donuts?

A: No. What I recall, our whole conversation took place about his drug use and to get clean.

Q: How long did the conversation take place for?

A: For the length of a cigarette. I'd say five, six minutes.

Q: Did you tell him that the police had fingerprints from the scene that matched his?

A: I don't recall that. But that's not something I would discuss.

Q: Why is that?

A: Well, if I start making accusations about police having fingerprints, this or that, I don't know if the suspect was wearing gloves or something like that, I could damage the investigation.

Q: Did you urge him to go in and talk to Mikulski?

A: No. I urged him to get clean and his parents would come around.

Q: Did you talk about anything else?

A: Not that I recall.

During cross-examination, Detective Gillan denied telling defendant that part of dealing with a drug problem is telling the truth or that "he should basically tell the police officers and get it off his chest." But Detective Gillan did acknowledge that defendant "was down" and a "little bit" depressed at the time.

C. After the Cigarette Break

Following the cigarette break, defendant insisted upon speaking with the police. Detective Mikulski responded that because defendant had invoked his right to counsel, he could no longer speak with him. Defendant persisted, which prompted Detective Mikulski to instruct defendant as required by Miranda. The time was 6:54 p.m. Defendant had been in police custody for more than three hours and had been interrogated during most of that time yet this was the first time defendant was advised of his Miranda rights.

In our earlier opinion, we recounted what took place next:

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. [Yohnnson, supra, slip op. at 5-6.]

As can be seen, defendant was in custody and interrogated for nearly six hours*fn6 ; none of this interrogation was recorded until the confession that began at 10:09 p.m. In addition, defendant was not advised of his Miranda rights until after the first two-hour-and-forty-five-minute interrogation and the short cigarette break.

As noted, following our remand, the judge heard additional testimony from Detective Mikulski and, for the first time, from Detective Gillan. In his written opinion, the trial judge provided no greater detail (because Detective Mikulski provided no greater detail) about the preinterview than he had previously. Notwithstanding the lack of any specific information regarding the content and tenor of the preinterview, the judge concluded that the later confession was not tainted because Detective Mikulski ceased questioning defendant once there appeared to be an invocation of his right to counsel. As we have previously noted, the judge made no attempt to square Detective Mikulski's earlier testimony that defendant made an equivocal invocation of his right to counsel "no more than an hour" after he began questioning defendant, which would place that invocation at approximately 5:00 p.m., and not at the time the preinterview was terminated, i.e, 6:35 p.m.

The judge also appears to have found that the preinterview was not the equivalent of "interrogation," as defined by case law, stating:

Detective Mikulski testified that the extent of questioning during the "pre-interview" was very broad; simply laying the ground work for the interrogation. Additionally, he explained that he did most of the talking; suggesting that any "interrogation" was non-existent.

In addition, the judge found significant the fact that Detective Mikulski "believed" defendant had been fully warned prior to the preinterview. As a result, the judge concluded that State v. O'Neill, 193 N.J. 148, 180 (2007), which condemned the "question first, warn later" practice as a "technique devised to undermine both the efficacy of Miranda and our state law privilege," was distinguishable because the police here did not intentionally fail to advise defendant of his Miranda rights as they had in O'Neill.

And, as lastly relevant here, the judge described Detective Gillan's testimony about the cigarette break. We assume the judge found this testimony credible, although he never actually said so in his written opinion. As a result of these findings, the judge determined "that any conversation that occurred between defendant and Detective Gillan was not the 'functional equivalent of interrogation,'" citing State v. Rhodes, 329 N.J. Super. 536 (App. Div.), certif. denied, 165 N.J. 487 (2000).

Based on these findings and conclusions, the judge again denied the motion to suppress defendant's incriminating statements.



The State was obligated to demonstrate -- beyond a reasonable doubt -- that defendant's waiver of his right to counsel and his privilege against self-incrimination were "knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000); see also State v. Knight, 183 N.J. 449, 461-63 (2005); State v. Burris, 145 N.J. 509, 534 (1996); State v. Kelly, 61 N.J. 283, 294 (1972). In determining whether the defendant's confession should have been suppressed, we start with certain undisputed facts: (1) defendant was arrested within a short time after shooting heroin into his veins*fn7 ; (2) defendant was not Mirandized for more than three hours after his arrest; and (3) for most of that three-hour, pre-warning period, defendant was interrogated.

Even though the State concedes these things, we digress to further examine the question of whether defendant was interrogated because of the trial judge's contrary conclusion. The judge held that because Detective Mikulski only "broad[ly]" outlined "the ground work for the interrogation" and did "most of the talking" during the preinterview, "any 'interrogation' was non-existent" (emphasis added). This determination is based on a misconception of what is meant by "interrogation," which, in this setting, is not limited to rigorous or oppressive questioning as the judge appears to have assumed.

The Miranda Court recognized that "the modern practice of in-custody interrogation is psychologically rather than physically oriented." Miranda, supra, 384 U.S. at 448, 86 S.Ct. 1614, 16 L.Ed. 2d at 708. As a result, 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 a police officer's "general discussion about the victim," State v. Bey, supra, 112 N.J. at 68 n.13, or a generalized discussion relating to an investigation, ibid. (citing, with approval, Christopher v. Florida, 824 F.2d 836, 845 (11th Cir. 1987)).

In applying these principles 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 the same conclusion when an officer confronted a defendant in his jail cell, told the defendant of a robbery and of the formal charges against him, and then showed the defendant pictures of two other persons who had been arrested in connection with the robbery. State v. Ward, 240 N.J. Super. 412, 419 (App. Div. 1990).

In continuing to adhere to this approach, it must be recognized that the nature of the police communications that must be preceded by Miranda warnings is not determined solely by whether the discussion takes a hostile and rigid form of questioning, a casual or friendly conversation, or anything in between. Rather, an accused is subjected to interrogation when police officers should have known that their words or actions "were reasonably likely to elicit an incriminating response." Innis, supra, 446 U.S. at 303, 100 S.Ct. at 1691, 64 L.Ed. 2d at 309. See also State v. Stott, 171 N.J. 343, 365 (2002). Indeed, it does not even matter, in determining whether communications should be viewed as interrogation, whether the police are successful in eliciting an incriminating response.

In any event, in this case, it suffices to note that the State concedes defendant was interrogated, as the term is understood in this setting, during the two-hour-and-forty-five-minute preinterview, without having been advised of his Miranda rights.


Since defendant was subjected to a pre-warning interrogation of nearly three hours, there is no question -- and, again, the State candidly does not dispute -- that any statements obtained from defendant during that time period could not be used against him. The State argues, however, that the pre-warning interrogation is of little or no concern here because defendant did not then incriminate himself. We reject this brightline approach.

The matter does not turn on whether defendant was able to avoid incriminating himself before Miranda warnings were given. A post-warning incriminating statement must be suppressed if tainted by a pre-warning interrogation. In determining the impact of the pre-warning interrogation on the post-warning confession, we are guided by the principles recently set forth by our Supreme Court in O'Neill.

In O'Neill, supra, 193 N.J. at 170-76, the Court first examined the test adopted in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed. 2d 222 (1985), which was revisited and revised by a divided Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed. 2d 643 (2004), in determining, for federal constitutional purposes, the significance of "[t]he technique of interrogating in successive, unwarned and warned phases," id. at 609, 124 S.Ct. at 2608, 159 L.Ed. 2d at 653. In Elstad, the Court held that an individual who responds to "unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." 470 U.S. at 318, 105 S.Ct. at 1298, 84 L.Ed. 2d at 238. Instead, the Court focused on whether the later statement was knowingly and voluntarily made when viewed against "the surrounding circumstances and the entire course of police conduct." Ibid. The Court also held it would not presume that "a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." Id. at 309, 105 S.Ct. at 1293, 84 L.Ed. 2d at 232.

In Seibert, the Court considered a police protocol that instructed officers to withhold Miranda warnings "until [an] interrogation has produced a confession." 542 U.S. at 604, 124 S.Ct. at 2605, 159 L.Ed. 2d at 650. A plurality of four concluded that this protocol failed to comply with Miranda; indeed, the plurality recognized that the protocol's purpose was "to render Miranda warnings ineffective." Id. at 611, 124 S.Ct. at 2610, 159 L.Ed. 2d at 654. To determine "whether Miranda warnings delivered midstream could be effective enough to accomplish their object," id. at 615, 124 S.Ct. at 2612, 159 L.Ed. 2d at 657, the plurality held that five factors should be examined and weighed: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. [Ibid.]

Following its application of these factors, the Seibert plurality held that the defendant's confession had to be suppressed because, among other things, it was preceded by a thirty- to forty-minute pre-warning interrogation. Id. at 614-17, 124 S.Ct. at 2611-13, 159 L.Ed. 2d at 656-58.

Justice Kennedy concurred in the judgment, but for different reasons. He concluded that absent a "deliberate two-step strategy" of asking first and warning later, the Elstad test should apply; and, when Miranda warnings were purposefully withheld, the post-Miranda statement should be excluded "unless curative measures are taken, such as 'a substantial break in time and circumstances' from the initial unwarned interrogation or 'an additional warning that explains the likely inadmissibility of the prewarning custodial statement.'" O'Neill, supra, 193 N.J. at 174 (quoting Seibert, supra, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed. 2d at 661 (Kennedy, J., concurring)).

Four members of the Court dissented in Seibert, asserting that Elstad had been inadvisedly "devour[ed]" by the plurality's approach, Seibert, supra, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed. 2d at 662, thus providing a counterpoint to the plurality's view that Elstad would be "disfigure[d]" by a holding that authorized a "question-first strategy" in interrogating suspects, id. at 614, 124 S.Ct. at 2611, 159 L.Ed. 2d at 656. The dissenting justices also found Justice Kennedy's view unworkable because it turned on whether the interrogation technique was "deliberate" or "calculated," thus requiring examination of the police officer's state of mind --an approach the Court "normally take[s] pains to avoid." Id. at 626-27, 124 S.Ct. at 2618-19, 159 L.Ed. 2d at 664 (O'Connor, J., dissenting).

Recognizing that Seibert "ha[s] sown confusion in federal and state courts," and in order to provide courts and law enforcement agencies with more "workable standards" than those provided by "[t]he shifting sands of federal jurisprudence,"*fn8 our Supreme Court has determined that such matters in this jurisdiction should be governed by this State's privilege against self-incrimination. O'Neill, supra, 193 N.J. at 175. In so holding, the Court recognized that our state law privilege against self-incrimination has been interpreted "to grant broader rights than those available under the Fifth Amendment," and concluded that the impact of a sequential interrogation should be resolved by "our own developed jurisprudence, infused with persuasive reasoning from Seibert's plurality opinion." Id. at 176. Indeed, the Court concluded that "[t]he two-step, 'question-first, warn-later' interrogation is a technique devised to undermine both the efficacy of Miranda and our state law privilege," and, as a result, found it necessary to "set clear standards that will discourage law enforcement agencies from engaging in conduct that will deny a defendant subject to a custodial interrogation a true opportunity to assert his right against self-incrimination." Id. at 180.

In instructing on the resolution of such matters when there has been a "question-first, warn-later" interrogation, O'Neill placed the focus "on whether a suspect knowingly, voluntarily, and intelligently waived his rights before speaking to the police," and held that as a matter of state law, . . . 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 officials 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.]

In urging that the trial judge properly concluded that defendant's post-warning statements were admissible, the State would have us distinguish O'Neill from the present situation for two essential reasons. First, the State contends that in O'Neill the police deliberately withheld the warnings when the interrogation commenced, whereas Detective Mikulski assumed defendant was properly Mirandized when arrested. And second, the State emphasizes the fact that the defendant in O'Neill gave incriminating statements prior to the warnings and, here, defendant did not.

Like the State, the trial judge, in ruling upon the matter following our remand, distinguished O'Neill*fn9 for the same two reasons. The judge held "there was no intentionally coercive practice on the part of law enforcement" by referring to Detective Mikulski's testimony that he believed defendant had been warned prior to the preinterview. And the judge found significant that "defendant maintained his innocence and denied any involvement or knowledge of the robberies" during the entire preinterview, concluding that "any constitutional violation that occurred due to [the arresting officer's] failure to properly and fully warn defendant was cured by Detective Mikulski's giving proper warning prior to defendant making any incriminating remarks." We find the first holding erroneous; and, even though we acknowledge that the facts upon which the second holding is based have relevance, those facts do not support the judge's apparent outright rejection of the O'Neill calculus in considering the impact of the pre-warning interrogation that occurred here.

As for the first holding, only Justice Kennedy in Seibert concluded that whether the interrogating officer acted deliberately or in a calculated manner is determinative of the admissibility of the post-warning statements. Seibert, supra, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed. 2d at 661 (Kennedy, J., concurring). Not even the dissent in Seibert, which would have permitted use of the confession at trial, found it advisable to gauge the impact of a failure to warn by the interrogating officer's state of mind. Id. at 627-28, 124 S.Ct. at 2618-19, 159 L.Ed. 2d at 664 (O'Connor, J., dissenting). In this regard, Justice O'Connor stated in her dissenting opinion that Justice Kennedy's approach untethers the analysis from facts knowable to, and therefore having any potential directly to affect, the suspect. Far from promoting "clarity," the approach will add a third step to the suppression inquiry. In virtually every two-stage interrogation case, in addition to addressing the standard Miranda and voluntariness questions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid. [Id. at 627, 124 S.Ct. at 2619, 159 L.Ed. 2d at 664 (citation omitted).]

Thus, whether Seibert has any relevance at all in light of O'Neill, the approach adopted by the trial judge, and urged by the State, is a view that finds the support of only one member of the Supreme Court of the United States.

As we have observed, Elstad and Seibert describe the requirements of the federal constitution. In adopting principles for two-stage interrogation cases based on New Jersey law, our Supreme Court endeavored in O'Neill to adopt an approach that "will avoid the unworkable standard of delving into a police officer's state of mind, and keep the spotlight on the focal issue -- whether the defendant properly waived his rights." 193 N.J. at 180. As a result, the trial judge's reliance upon the fact that Detective Mikulski thought defendant had been warned prior to the preinterview was erroneous. Detective Mikulski's state of mind on that point has no relevance in determining the voluntariness of defendant's later waiver of his Miranda rights and the admissibility of defendant's later confession.

We also find no merit in the State's "no-harm, no-foul" theory, adopted by the trial judge, which is based on the fact that because the pre-warning interrogation produced no incriminating statements, O'Neill's condemnation of the "question-first, warn-later" interrogation technique has no particular bearing here. Although we conclude that the results of the pre-warning interrogation have relevance and should be considered in determining the voluntariness of a post-warning statement, we do not agree that O'Neill applies only when defendant gives an incriminating statement prior to being Mirandized.*fn10 Indeed, the Court in O'Neill emphasized that it had not "pronounc[ed] a brightline rule" and, in giving examples of its application, recognized that the absence of an incriminating statement prior to Miranda warnings does not excuse a pre-warning interrogation:

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. [193 N.J. at 181 (emphasis added).]

In other words, contrary to the judge's holding, whether an incriminating statement is or is not produced by a pre-warning interrogation is relevant -- but it is not conclusive -- in considering the voluntariness of a suspect's later waiver of his Miranda rights. Indeed, the very wording of the first O'Neill factor, to which we will momentarily turn, reveals that the absence of a pre-warning incriminating statement does not eliminate consideration of the remaining factors; if it were conclusive, the Court certainly would have said so.


Having found erroneous both the judge's attempt to distinguish O'Neill as well as his finding of relevance in Detective Mikulski's mistaken belief that Miranda warnings were given prior to the preinterview, we turn to the judge's findings and conclusions to ascertain whether they nevertheless provide a basis for the admission of defendant's confession that followed the pre-warning interrogation.

The first O'Neill factor requires a consideration of "the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights." O'Neill, supra, 193 N.J. at 181. In finding that this factor weighed in favor of admission of the confession, the judge found Detective Mikulski credible when he described the purpose of the preinterview as laying the groundwork for later interrogation. Although that may have been the detective's intention, we cannot defer to the judge's determination that this preinterview did not constitute "interrogation," a holding that we rejected earlier in this opinion, or his general disregard for the significance of the preinterview.

Indeed, in considering the judge's findings regarding the content of the preinterview, we are impressed by the fact that despite being given a second opportunity to expand upon its content as a result of our remand for additional findings,*fn11 Detective Mikulski could only provide the trial judge with the same generalities previously provided -- that he discussed the robberies in which defendant was a suspect, indicated that witnesses were available, and showed defendant a composite drawing of the robbery suspect, which resembled defendant, that he did most of the talking, and that defendant did not incriminate himself. The trial judge was willing to assume that the preinterview was not overbearing; however, there is simply no evidence to support that implausible conclusion. Revealing the nature of the robberies and confronting defendant with a drawing of the suspect, which looked like him, constituted statements reasonably designed "to elicit an incriminating response." Innis, supra, 446 U.S. at 303, 100 S.Ct. at 1690, 64 L.Ed. 2d at 308. Moreover, common sense dictates a conclusion that the discussion Detective Mikulski could only generally describe would have taken far less than two hours and forty-five minutes. Considering the conceded length of the preinterview -- an aspect of this first O'Neill factor*fn12 -- as well as Detective Mikulski's inability to provide or recreate its content, the only fair interpretation permitted by the evidence is that the preinterview was inquisitorial and coercive.*fn13 Accordingly, in summarizing the first O'Neill factor's application here, the absence of any incriminating statement weighs against suppression, but the length of the pre-warning interrogation as well as its coercive nature weighs in favor of suppression.

The second O'Neill factor requires consideration of "the proximity in time and place between the pre- and post-warning questioning." O'Neill, supra, 193 N.J. at 181. The judge found that the pre-warning interrogation was immediately followed by the cigarette break, which he found was "exceedingly brief, taking place in simply the time it took to smoke a cigarette, five to six minutes." Immediately after the cigarette break, defendant expressed to Detective Mikulski his willingness to speak to him, following which he was finally Mirandized; defendant was then interrogated for three unrecorded hours until audio-visual equipment was turned on at 10:09 p.m., and defendant's confession recorded.

Although the trial judge's opinion does not incorporate the second O'Neill factor, there is no dispute that the pre- and post-warning interrogations took place in the same location and were interrupted only by the five- or six-minute cigarette break. This proximity in time and space weighs in favor of suppression.

The third O'Neill factor requires consideration of "whether the same law enforcement officers conducted both the unwarned and warned interrogations." Ibid. Although this factor is not discussed or incorporated within the judge's overall analysis following our remand, there is no dispute that -- with the exception of the cigarette break, during which defendant was accompanied by and spoke with Detective Gillan -- the pre- and post-warning interrogations were conducted by Detective Mikulski, who was at times accompanied during both sessions by Detective O'Donnell. These undisputed facts weigh in favor of suppression.

The fourth O'Neill factor requires consideration of "whether the officers informed defendant that his pre-warning statements could not be used against him." Ibid. Here, it is not disputed that defendant did not incriminate himself during the pre-warning interrogation. Accordingly, it is fair to conclude that it was not necessary for the officer to warn defendant that no use could be made of whatever he said during the pre-warning interrogation. We would observe, however, that it is the voluntariness of defendant's later waiver that is at issue. When a defendant has given statements prior to a Miranda warning, what is incriminating and what is not may not always be so clear. In some situations, the police may come to the conclusion that a suspect had not incriminated himself, but the suspect may not feel the same way.*fn14 It would therefore seem appropriate to warn that any prior statements, whether or not incriminatory, may not be used against a suspect in sequential interrogation circumstances like this. See Seibert, supra, 542 U.S. at 613, 124 S.Ct. at 2611, 159 L.Ed. 2d at 656 (holding that "telling a suspect that 'anything you say can and will be used against you,' without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail"); O'Neill, supra, 193 N.J. at 183.

The fifth O'Neill factor requires consideration of "the degree to which the post-warning questioning is a continuation of the pre-warning questioning." Id. at 181. As we have already mentioned, the so-called preinterview and the interrogation that followed the short cigarette break dealt with the same subject matter and occurred in the same location. In other words, the cigarette break was merely a brief interlude in a single, continuous interrogation. This factor favors suppression of the post-warning statements.

In O'Neill, the Court indicated that "[a]nother circumstance that may be considered is the defendant's prior experience with the criminal justice system." Ibid. Although defendant had prior experiences with the criminal justice system, its extent is not fully disclosed by the record on appeal. We would also consider in this context the fact that defendant had been informally warned by his uncle about speaking with police without an attorney. These facts weigh in favor of the voluntariness of his post-warning statements.

As we have observed, the trial judge denied defendant's suppression motion following our remand by relying upon a mistaken interpretation of O'Neill and by chiefly relying upon only one aspect of the first O'Neill factor, i.e., that no incriminating statements were made until after Miranda warnings were given. The judge also referred to the prior advice given to defendant by his uncle, as suggesting defendant's knowledge of his rights. However, the judge made no mention of the other O'Neill factors, all of which weigh in favor of suppression. He also found no substance in one area of concern we particularly focused on in our earlier opinion: the content of the cigarette break discussion between defendant and Detective Gillan.*fn15

Justice Long observed in State v. Cook, 179 N.J. 533, 569 (2004) (dissenting opinion), that the judicial function in determining the admissibility of statements generated by an unrecorded police interrogation requires "the funneling of the reality of an interrogation through the lenses of partisans, with the concomitant frailty of language and recollection." In engaging in such a process and reviewing the consequences of an unrecorded pre-warning interrogation of nearly three hours, followed by an unrecorded post-warning interrogation of three hours, we are mindful that we are bound to defer to a judge's credibility findings. See State v. Locurto, 157 N.J. 463, 470-71 (1999). We have. But we are not required to put aside our common sense and experiences.

We accept the fact that the judge found Detective Mikulski's version of the unrecorded pre-warning and post-warning interrogations, as well as Detective Gillan's version of the cigarette break, to be more credible than defendant's. However, we are not persuaded, even when we defer to those findings, that there was sufficient evidence in the record for the State to overcome its burden of persuasion.

As we have observed, Detective Mikulski never provided a sufficient description of the unrecorded, pre-warning interrogation despite two opportunities to testify about it. That interrogation, which followed defendant's use of illegal narcotics, lasted for nearly three hours. With the intervention of a cigarette break of only a few minutes, during which, according to Detective Gillan, defendant's spirits were low and he expressed remorse about disappointing his parents, Detective Mikulski finally Mirandized defendant and resumed his interrogation. This post-warning interrogation continued for three more hours before the police began recording defendant's incriminating statements.*fn16

As we have already mentioned, the State was obligated to demonstrate defendant's waiver of his right to counsel and his privilege against self-incrimination were "knowing, intelligent, and voluntary in light of all the circumstances" beyond a reasonable doubt. Presha, supra, 163 N.J. at 313. Our prior remand gave the State a second chance to clarify the questions surrounding the police interrogation of defendant and to persuade that defendant's waiver of his rights and his subsequent confession were voluntary. In recognizing that the State has never adequately demonstrated the particulars of the pre-warning interrogation, and in observing there was no genuine dispute that the facts relating to the second, third, fourth and fifth O'Neill factors favor suppression, we conclude that, even in deferring to the judge's credibility findings, the record is too insubstantial to uphold a finding that the State proved beyond a reasonable doubt that the pre-warning interrogation did not undermine "defendant's ability to assert his right to remain silent and his ability to knowingly, voluntarily, or intelligently waive that right." O'Neill, supra, 193 N.J. at 184.

We, therefore, reverse and direct the entry of an order suppressing defendant's confession and, as a result, vacate the judgment of conviction and remand for trial.

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