On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1319.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
I. ON REMAND, THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO REOPEN THE MIRANDA HEARING TO PRESENT ADDITIONAL TESTIMONY WITHOUT: (1) REQUIRING THE STATE TO GIVE A REASONABLE EXPLANATION WHY IT HAD NOT PRESENTED THAT TESTIMONY AT THE ORIGINAL MIRANDA HEARING AND (2) WITHOUT CONSIDERING THAT YEARS HAD ELAPSED BETWEEN THE ORIGINAL HEARING AND THE REOPENING. (PARTIALLY RAISED BELOW)
II. THE NEW EVIDENCE THAT THE STATE PRESENTED AT THE REOPENED HEARING FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT NEITHER MIKULSKI NOR GILL[A]N ENGAGED IN THE FUNCTIONAL EQUIVALENT OF INTERROGATING YOHNNSON.
A. THE TRIAL COURT'S FINDING THAT MIKULSKI DID NOT INTERROGATE YOHNNSON WAS CONTRARY TO THE EVIDENCE.
B. THE TRIAL COURT'S FINDING THAT GILL[A]N UNEQUIVOCALLY DENIED DISCUSSING THE CASE WITH YOHNNSON DURING THE CIGARETTE BREAK WAS NOT SUPPORTED BY THE EVIDENCE EITHER.
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.
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.
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 ...