On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1578.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Rodríguez and Ashrafi.
We granted the State's motion for leave to appeal from the grant of defendant John Wessells' motion to suppress a custodial statement to the police. The trial court granted a stay pending appeal. We reverse and remand for trial holding that, pursuant to both the federal and New Jersey Constitutions, a person who has asserted the right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney.
These are the salient facts. On September 2, 2006, Sandy Bellush, Eric Jackson, and Brielle Simpkins were shot to death in Newark. Two others were also shot, but survived.
As a result of police investigation, co-defendant Raheem Clay, nicknamed "Rah," was arrested and charged with conspiracy to commit murder. The following day, September 3, 2006, shortly before 9:00 a.m., Newark Homicide Detective Murad Muhammad and Essex County Prosecutor's Detective Marquise Carter went to defendant's home and arrested him on a traffic warrant. He was taken to police headquarters. Defendant was orally advised of his Miranda*fn1 rights and provided with a written Miranda form. Defendant read and signed the form, waiving his rights. According to Muhammad, defendant did not invoke his right to remain silent or request a lawyer at the September 3, 2006 interview. The detectives questioned defendant about an August 24, 2006 incident, in which defendant was the victim of an assault. Muhammad also had information that defendant had quarreled about money with Sandy Bellush. The interview concerning the August 24 incident was not recorded because defendant declined to give a formal taped statement.
Muhammad asked defendant if he had any information related to the September 2, 2006 triple homicide. Defendant denied any knowledge of the shootings, stating he only knew of the incident through newspaper accounts. However, he admitted that on August 24, 2006, he quarreled with Bellush over a car or money. Bellush's friends assaulted defendant. According to Muhammad, the interrogation was terminated. According to defendant, he requested a lawyer before continuing to answer any more questions, then the interrogation terminated. Defendant was released once he posted bail on the traffic warrants.
The police investigation continued. On September 11, 2006, one of the surviving victims identified defendant as a participant in the shootings. The following day, defendant was taken into custody in connection with the homicides and attempted murders.
On September 12, 2006, in a recorded statement, after Miranda warnings were given again, defendant waived his rights and agreed to give a statement. Defendant admitted his presence at the scene of the homicide, but denied responsibility for the shootings. He stated that "Nut" and "Rah-Rah," his co-defendants, were also present. Defendant acknowledged that he was having a "little money situation" with Bellush. He reiterated that on August 24, 2006, he was "jumped" in a fight over money owed to Bellush.
Defendant was arrested and charged with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 & 11-3(a); purposeful or knowing murder by use of a handgun, N.J.S.A. 2C:11-3(a)(1)(2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a); first-degree attempted murder, N.J.S.A. 2C:5-1 & 11-3(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b); conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 & 17-1(a); and second-degree aggravated arson, N.J.S.A. 2C:17-1(a).
Defendant moved to suppress the September 12, 2006 statement. The judge held an evidentiary hearing on the motion. Defendant testified that on September 3, 2006, he was brought to police headquarters on a traffic warrant and asked about a homicide. He identified his signature on the Miranda waiver form but did not recall that the form made reference to the homicide of Sandy Bellush. He stated the form was blank when he signed it. Defendant acknowledged each of the rights with his initials, including the one pertaining to a lawyer.
According to defendant, he told the detectives that he did not know anything about a homicide and asked for a lawyer, at which point all questioning ceased. He did, however, provide the detectives with some information. He identified a telephone contact named "Rah," who had lived with one of the homicide victims in July 2006. He was asked about "being a victim" in an assault, but he refused to ...