July 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ABDUL GRIGGS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Fuentes and Chambers.
By leave granted, the State appeals from the order of the Law Division, Criminal Part, suppressing an incriminating statement defendant Abdul Griggs gave to the police concerning his involvement in the murder of John Zephirin, after the interrogating officers assured him that the equipment recording the interrogation had been turned off pursuant to defendant's explicit request. It is not disputed that defendant was in police custody at the time he gave these statements, and that he had agreed to respond to the officers' questions after being informed of his constitutional rights under Miranda,*fn1 and thereafter waived those rights.
After conducting an evidentiary hearing, the trial court granted defendant's motion to suppress his statements. Relying on State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 572 (2003), Judge Moynihan found that the interrogating officers violated defendant's right to not have his statements electronically recorded in any form. In so holding, Judge Moynihan found unavailing the officers' attempt at obfuscating defendant's direct and explicit request to speak "off the record," by asking him: "you want the video off," to which defendant responded "I want it off." Judge Moynihan concluded that the officers' decision to merely turn off only the video part of the equipment, leaving the audio section fully operational, violated defendant's rights under Pillar.
After reviewing the record developed before the trial court, and in light of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Moynihan in his oral opinion delivered from the bench on April 7, 2009. We add only the following brief comments.
The salient facts are undisputed. On August 3, 2006, defendant was taken into custody by City of Elizabeth police offices, as a suspect in the murder of a man named John Zephirin. According to the State, defendant gave a statement that day after being informed of and thereafter waiving his rights under Miranda. The following day, defendant was again interrogated by the police. This time, however, the interrogation was conducted by Detective George Jimenez, of the Union County Prosecutor's Office, Homicide Task Force, and Elizabeth Police Department Detective Thomas Koczur.
The room where defendant was questioned by the police was equipped with an electronic DVD recording device, that records both audio and/or video, and a backup audio-only system. After again obtaining defendant's written waiver of his rights under Miranda, the two detectives began their interrogation, with the DVD video/audio recording system in operation.
At the suppression hearing, the Assistant Prosecutor asked Detective Jimenez the following questions:
Q: At some point during -- after you had advised the defendant of his Constitutional Rights, did the defendant indicate that he wanted to be -- that he did not want to be recorded anymore?
DET. JIMENEZ: Yes.
Q: Did you guys attempt to clarify what he meant by that?
DET. JIMENEZ: Detective Koczur asked him, 'Video'? And he said, 'Yeah, video.'
Q: And did you turn off the video, at that point?
DET. JIMENEZ: Yes.
Detective Jimenez then testified that, consistent with the policy of the Union County Prosecutor's Office, the audio part of the equipment continued to operate after the video part was turned off.
Defendant testified at the suppression hearing. He reiterated what is reflected in the audio and video recordings of the interrogation. The written transcript of the electronic record shows the following colloquy between defendant and the interrogating officer:
DEFENDANT: Take me off the record and let's talk like men.
DET. KOCZUR: Take you where?
DEFENDANT: Take me off the record. I know ya'll recording this.
DET. KOCZUR: Umm humm. You're right. You want the video off?
DEFENDANT: I want it off.
DET. KOCZUR: You want the video off?
DET. KOCZUR: Ok. Stand by.
DET. KOCZUR: Done.
As this exchange clearly shows, Detective Koczur's ostensible clarification of defendant's straight forward request to "take [him] off [the] record," was a mere subterfuge, intended to thwart defendant's right under Miranda not to have his statements electronically recorded. In Pillar, supra, we suppressed a statement given by the defendant tainted by the interrogating officer's disregard of the defendant's request to speak off the record. 359 N.J. Super. at 258. Judge Weissbard gave the following explanation for the need to suppress statements obtained in violation of a defendant's explicit request to speak off the record:
A police officer cannot directly contradict, out of one side of his mouth, the Miranda warnings just given out of the other. An acquiescence to hear an "off-the-record" statement from a suspect, which the officer ought to know cannot be "off-the-record," totally undermines and eviscerates the Miranda warnings, at least with respect to a statement made, as here, in immediate and direct response to the misleading assurance. [Ibid.] We reached a similar result in State v. Fletcher, 380 N.J. Super. 80, 82 (App. Div. 2005).
Against these legal principles, we are satisfied that Judge Moynihan correctly suppressed the incriminating statement defendant gave to the interrogating officers on August 4, 2006.