On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-07-02243.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
By leave granted, the State appeals from an April 14, 2009 order of the Law Division suppressing defendant Damu Alston's oral confession to the murder of Dana Grimsley. After a Miranda*fn1 hearing, the motion judge determined that defendant did not knowingly waive his right to counsel and suppressed defendant's statement. We reverse.
These are the relevant facts adduced from the hearing. On January 8, 2008, defendant was arrested for the September 2, 2007 murder of Dana Grimsley. Defendant was then brought to the Newark Police Station, Homicide Squad for questioning at approximately 8:00 a.m., the morning of his arrest.
Detective Christopher Smith, of the Essex County Prosecutor's Office, and Detective Murad Muhammad of the Newark Police Department informed defendant of his Miranda warnings at approximately 10:16 a.m., utilizing a standard form provided to the police. This initial reading was accurate and complete, devoid of any misstatements or omissions. Specifically, defendant was advised in essence:
1. You have the right to remain silent.
2. Anything you say can be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
5. You have the right to stop answering questions or giving a statement anytime you wish and do not have to give a reason. You also have the right to demand a lawyer during the giving of a statement or the answering of questions and may stop until he arrives. If you cannot afford a lawyer, one will be appointed to represent you. [Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707.]
Muhammad asked defendant five different times during recital of the Miranda warnings, whether he understood what was being read to him. Defendant answered "yes" each time. Following this specific exchange, Muhammad asked defendant if he had any questions, to which defendant replied "no." Beginning with this initial reading and continuing throughout the ten minute interview with Smith and Muhammad, an audio-tape was recording the exchange.
The tape revealed that after defendant was given his Miranda warnings, he read and signed a Miranda waiver, indicating he understood his rights, was willing to answer questions, he did not wish to have a lawyer with him at that time but that he understood he could have one at any time if he so desired. The form also indicated defendant was informed and understood he could terminate the interrogation at anytime.
Both Smith and Muhammad signed the form, acknowledging that they witnessed this waiver.
Immediately after signing this waiver statement, defendant and Muhammad engaged in the following conversation:
Mr. Alston: I feel like I'm signing my ...