August 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DION MILLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1193.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 9, 2009
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Dion Miller appeals from a February 23, 2007, judgment convicting him of first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. The judge merged the weapons convictions into the armed robbery conviction and the armed robbery conviction into the felony murder conviction for sentencing purposes and imposed a term of thirty years in prison with no possibility for parole for the entire term. The central issue on appeal revolves around the denial of defendant's two motions to suppress three incriminating statements he gave to investigators from the Hudson County Prosecutor's Office. We remand for further fact-finding.
On January 5, 2003, seventy-four-year-old Romeo Cavero telephoned his family to tell them he had just been mugged near his senior-citizen apartment building. When family members arrived at Cavero's building, they found him bleeding from his head, standing inside the building, and holding the front glass door in the vestibule open for them. Eric Santiago, Cavero's grandson, noticed blood pooled on the sidewalk outside and a bloody handprint in the vestibule. There were also fresh bloody footprints in the snow by a pool of blood; the footprints went up the block toward an intersecting street. Cavero told his family members that he had been attacked from behind on the steps to his home and his attackers left in a black car.
Defendant was at the scene when Cavero's family members arrived, dressed in a dark shirt, jeans, and boots. He lived with his infirm elderly grandmother in an apartment across from Cavero's and was acquainted with him. Santiago knew defendant from seeing him around his grandfather's apartment building and knew that Cavero was acquainted with him as well because defendant was the nephew of Cavero's friend, Lisa Pryor. After Cavero's family members attended to him and called an ambulance, defendant approached Santiago, introduced himself, and said that "it wasn't him." Defendant further told Santiago that he found Cavero in that condition and had tried to help him. Santiago observed that defendant smelled of alcohol and was "rambling." Cavero did not tell Santiago that defendant was his attacker.
Fifteen minutes later, the local police responded to the scene. Cavero told Patrolman Carmine Disbrow that he was robbed by "a black male . . . driving a black vehicle" and that his attacker had hit him on the head, but he did not know the person who did it. Cavero appeared to Disbrow to be coherent but "shaken and a little dazed." Defendant was still present at the scene and asked Disbrow about Cavero's condition. Later that evening in the hospital, Cavero told Detective Peter Urbanowicz that he "might" be able to identify his attacker from a photograph. Urbanowicz told Cavero to call him when he was released from the hospital, but Cavero subsequently went into a coma and his injuries became life-threatening. When the doctors determined that Cavero's coma was irreversible, his family terminated life support, and he died on January 9, 2003, of complications from multiple blunt force trauma to his head. The medical examiner could not rule out Cavero's cane, which had his blood on it, as the weapon.
On the night of Cavero's death, Detectives Martin D'Angelo and Sean Means, both with the Hudson County Prosecutor's Office, sought defendant for questioning sometime between 11:00 p.m. and midnight. It is undisputed that the questioning began sometime shortly after midnight and was comprised of three periods of unrecorded interrogation followed by three formal recorded statements over the next seventeen hours. Defendant was apprised of his constitutional rights immediately before the first recorded statement at 1:51 a.m. on January 10, 2003, after he made some incriminating statements and on two occasions thereafter, one at 2:41 p.m. after defendant made some further incriminating statements and another about two to three hours later.
Defendant sought on two separate occasions to suppress the statements he made pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and its progeny. The motion judge heard testimony on the first suppression motion on January 13, February 5, February 26, March 3, and May 25, 2004. Oral argument was presented on June 3, and the judge placed her decision on the record on July 1, 2004. Defendant claimed in his first suppression motion that his statements to the police were not made following a knowing, intelligent, and voluntary waiver of his right to remain silent and his right to an attorney. He presented expert testimony on his mental state at the first suppression hearing. Because the voluntariness of his statements has not been raised on appeal, we need only discuss some of the motion judge's fact-findings and the evidence that supported them.
Means testified that he began working on the investigation by speaking with Cavero's family members on January 7 or 8, 2003. They mentioned defendant, who was also mentioned in the initial police report from January 5. On January 9 between 11:00 p.m. and 12:00 a.m., Means and D'Angelo went to 259 Van Nostrand Avenue with the two uniformed local patrolmen who initially investigated the assault. Both Cavero and defendant lived at this address on the first floor, defendant with his infirm grandmother. Means and D'Angelo knew that the apartment of defendant's grandmother was on the first floor. It was a secure building that the police could not enter without being admitted by an occupant. They had made no effort to contact defendant before this time. Means and one of the uniformed officers went around to the back of the building and stationed themselves at the rear windows of the ground floor apartment; D'Angelo and the other officer stayed by the front door. D'Angelo and a patrolman waited until another tenant in the building opened the front door, which gave them access to the inside of the building. At that time, D'Angelo summoned Means to the front of the building, they inserted an object to prevent the front door from closing, and Means and the other patrolman returned to their position outside the building. D'Angelo and the first patrolman went to the apartment in which defendant resided with his grandmother.
Means further testified that, rather than leaving a business card asking defendant to contact them, D'Angelo and the first officer knocked on the door and were admitted. At that point, Means and the second patrolman were called into the building and they went into the darkened apartment, where defendant was dressing. The detectives asked defendant to accompany them to the homicide office, explaining they needed to speak with him about the events of January 5, 2003, although they knew that defendant took care of his grandmother between midnight and 8:00 a.m. Defendant was totally cooperative and asked to get dressed, and they allowed him to do so. Defendant then reassured his grandmother that he was with friends and not to worry, he would be back. They were in the apartment for five to six minutes. Means and D'Angelo had defendant sit in the back seat of their unmarked vehicle for the drive to the homicide office. They arrived at 12:15 a.m. on January 10.
Means testified that he and D'Angelo brought defendant to an interrogation room, and Means went to make a pot of coffee. While he was doing that, D'Angelo chatted with defendant about his high school basketball activities and his military service. After Means returned and both detectives exchanged pleasantries with defendant, they began to question him around 12:30 a.m. about the events of January 5. He was not told that he was free to leave at any time. Defendant told them that he had been drinking heavily on January 5. Means testified that shortly before 1:45 a.m. the following occurred:
A: So, we are at this preliminary discussion about the event of January 5th, and the interview takes us to a point where my partner and I make a determination that he may be responding with things of incriminating himself.
Q: And what do you do at that point?
A: He's Mirandized.
According to Means, defendant's responses suggested to the detectives that he might be making incriminatory statements, which included a statement that defendant "had knowledge of the incident and that he was involved in it, but he actually didn't do it." Defendant reported he was only acting as a lookout. These "preliminary discussions" were never memorialized in writing. As well as providing the Miranda warnings, Means testified that he and his partner decided to charge defendant. They told defendant he was a suspect and was going to be charged as a conspirator and an accomplice.
A "pre-statement interview" began sometime before 3:00 a.m. The questioning then continued until 4:00 a.m. when a tape-recorded statement was taken, which was completed at 4:26 a.m. In this statement, defendant said he was acting as a look-out for "Rock" and a Filipino man, that the other men took Cavero's cane and each struck him on the head three times, robbed Cavero, and left in a black pick-up truck. Defendant remained behind to help Cavero get into his house. Following this statement, defendant was arrested, placed in a holding cell, and charged with conspiracy to commit a homicide, robbery, and aggravated assault.
According to Means, defendant's statement led the detectives to gather three people for questioning at 9:30 a.m.: Pryor; her boyfriend, Robert ("Rock") Brewington, Jr., who owned or used a black van; and the boyfriend's son, Cyril Brewington. By the time these people were brought to the homicide office, Detective William Heaney had arrived for the day and was briefed. Pryor and the Brewingtons were interviewed and then released. Meanwhile, defendant signed a consent-to-search form at 11:20 a.m.
Means testified that Heaney then spoke with defendant in the holding cell and advised him that Pryor and the Brewingtons had contradicted defendant's statement, although Heaney's report seemed to indicate that he was interviewing defendant while Means was interviewing the Brewingtons. In any event, defendant told Heaney he wanted to change his story. He was taken to the interrogation room and again subjected to a pre-statement interview of unknown duration. He then signed another waiver-of-rights card at 2:31 p.m.--ten hours after the first recorded statement had been completed. After signing the card, defendant gave a second recorded statement to the detectives at 2:41 p.m.
In this second statement, defendant told the detectives that Cavero said something to him that "triggered something" and he took Cavero's cane and struck him three to six times on his head. Defendant had been drinking more beer than usual. He denied taking any money. Defendant was then charged with the homicide in question.
Means began the paperwork needed to transport defendant to the county jail, including the preparation of a complaint. Some period of time elapsed after the second recorded statement before defendant stated that he wanted to speak with the detectives and Means prepared a third waiver-of-rights card. Defendant then gave a third recorded statement at 5:47 p.m.*fn1 In this statement, defendant told the detectives that he took Cavero's money and left the scene to go to a liquor store but dropped the money in a panic on the way. He then returned to the scene.
D'Angelo also testified at the first suppression hearing. He explained that in order to gain access to the senior-citizen apartment building, Means and one of the uniformed police officers tried to get in through a side door without success. While they were looking for another entrance, someone left through the front door, allowing D'Angelo and the other uniformed officer to gain access to the building.*fn2 Neither Means nor D'Angelo explained why they did not simply try ringing the outside bell or calling defendant's apartment in order to gain entry to speak with him.
D'Angelo testified that he did not have enough information at midnight to consider defendant a suspect. After they arrived at the homicide office, D'Angelo questioned defendant about what he had seen on the night in question, whether he had seen something that seemed out of place, and whether he could recall something then that he did not recall on January 5. As he continued to question defendant, "certain things were starting to change, you know, with answers he was giving. He wasn't being consistent, you know." That led D'Angelo to become suspicious and, with further questioning, defendant sat back in his chair, sighed, and said he had to get it off his chest. The detectives then "realized it may be more than just that." D'Angelo stopped him and then advised him of his constitutional rights.*fn3 Defendant then said he had something to say, which D'Angelo said surprised him. Ultimately, a formal tape-recorded statement was taken.
Heaney, who came on duty at 8:00 a.m. on January 10, was the last of the detectives from the Prosecutor's Office to testify at the first suppression hearing. He explained that he was alternately questioning defendant and listening to the interviews of Pryor and the Brewingtons, which began at 9:30 a.m. At 11:00 a.m., he instructed another officer to secure consent to search from defendant to obtain the clothing he was wearing on January 5.*fn4 At one point, he approached defendant in the holding cell and advised him that the story he provided was not accurate based on what the other people were saying because they had "pretty tight alibis."*fn5 Defendant responded that he wanted to talk further with the detectives to clarify some issues and tell them what actually did occur. This led to the second recorded statement at 2:41 p.m. Later, when the detectives were checking on defendant's welfare and continuing to have conversations with him, defendant said "he wanted to clear his mind and get something off his chest." This led to the third recorded statement at 4:54 p.m.; however, the waiver-of-rights form indicated that it was signed at 5:44 p.m., which may have been mistaken.*fn6
Establishment of bail was requested at 5:45 p.m.
Defendant, who was thirty-five years old at the time of the hearing, testified that he and his grandmother saw flashes of light at her rear bedroom windows around 11:45 p.m. on January 9, 2003, which startled his grandmother. Then, someone shined a flashlight through the living room windows. His grandmother told him to call the police, but then she dialed 911. The dispatcher told her the police were already there, but she could not understand what the dispatcher was saying and passed the phone to defendant. The dispatcher told him the police were at his building. He reassured his grandmother and after a little while there was a knock at their door. After asking who was there several times, the police identified themselves, and he opened the door.
When defendant let them in, D'Angelo picked up his wallet from the kitchen table and started looking through it while Means asked who he was, and he identified himself. One of the detectives told him, "You got to come with me." Defendant told the detectives his grandmother was ill and they had to get her permission before he could leave. Means then spoke with defendant's grandmother. The detectives told defendant that they wanted to ask him some questions, and he agreed to go with them.
Defendant knew they arrived at the homicide office at midnight because one of the detectives wrote the time on a yellow piece of paper when they went into the interrogation room. D'Angelo spoke with him about elementary school summer league basketball and said he remembered him from that league. D'Angelo did not tell him he was a witness or a suspect. When Means returned to the room from making coffee, defendant asked why they needed to question him, and whether it was about Cavero being in the hospital. Means replied, "'Yeah,' . . . that was correct, 'but he's dead, you son of a b[itch] and we're homicide, you mother[fucker],'" and pointed to D'Angelo's windbreaker, which had the word "Homicide" on it.
Means and D'Angelo then began to question him about where he was and what he was doing between 8:00 and 8:30 p.m. on January 5; D'Angelo took notes. Over the course of the next hour or so, defendant told the detectives that he was returning from his mother's house around 8:30 to 8:45 p.m., and when he arrived at his grandmother's building he saw blood on the ground. He followed the blood trail into the building and became worried that something had happened to his grandmother. He buzzed her door and she let him in; he was relieved that she was all right. He then traced the trail of blood to Cavero's door. Defendant knocked, Cavero opened the door for him, and he saw that Cavero was hurt. Cavero said he had called his family and an ambulance. Cavero also said that a black male in a black car hit him in the head. Defendant recounted everything that happened from that point to when Cavero was placed in the ambulance.
According to defendant, the detectives asked him about Pryor and the Brewingtons, and he told them who they were. At about 1:30 a.m. he asked to call his grandmother or a lawyer, but they would not permit him to do so because they had some more questions for him. Defendant denied that he had anything to do with Cavero's death, but Means said that he knew too much about the crime. The detectives did not believe him. Defendant replied that he learned about the crime from reports in the Jersey Journal. The detectives continued to question him about Pryor and the Brewingtons, asking where they lived and what was their relationship with Cavero. This continued until about 1:45 a.m. when he was given a rights statement and told, "'[T]his is procedure, you just got to sign it.'" Defendant claimed that the statement was neither read nor explained to him. Defendant signed that form.
Means then said that the detectives knew Pryor had a relationship with Cavero and said they knew defendant was the lookout and that Pryor and her daughter were supposed to pick up money from Cavero that day. Means told defendant they would go to the prosecutor and ask for leniency on the charges against defendant if he would testify against Pryor, although at this point defendant still had not been charged with anything. Sometime thereafter, defendant gave his first recorded statement to the detectives. Defendant also disputed the detectives' accounts of the timing and signing of the two subsequent waivers of his constitutional rights, but those disputes are not relevant here.
On June 3, 2004, defendant's counsel discussed the evidence at length and argued that it was clear that defendant was the target of the investigation from the moment the police arrived. She based this argument on the manner in which the police arrived, the fact that they were armed, and the fact that they were not following routine police procedure.
Defense counsel also pointed out during the course of her review of the evidence that:
The first waiver that is shown to [defendant] and signed by [defendant] is signed by [defendant] at roughly 3:57. We know that there was a statement before the 4 o'clock statement, because each officer testified that there was a pre-interview statement that began about 3 o'clock in the morning. From 12 o'clock to . . . to 4 o'clock, [defendant] was held incommunicado, despite requests, was not allowed to make a phone call.
After reviewing all of the evidence, counsel addressed the first issue raised on the motion:
Your Honor, as the Court is well aware, the state has a duty to prove beyond a reasonable doubt that [defendant] made a knowing, intelligent, and voluntary waiver of his right to remain silent. We did have testimony by Dr. Jonathan Willard-Mack, but before we get to . . . the basis of Dr. Mack's testimony, we just wish to establish, by way of quick background, the [c]court is aware that the Fifth Amendment establishes the privilege against self-incrimination.
After discussing applicable case law, defense counsel urged that the State had not proved "beyond a reasonable doubt that this is a knowing, intelligent waiver in light of all the circumstances." She sought suppression of all statements given by defendant. After the State presented its argument, the judge reserved decision.
On July 1, 2004, the judge placed her decision on the record. She denied the motion and in doing so made fact-findings relevant to the issue before us:
The court would indicate at the outset that I really accept the facts for the most part as being those that I don't believe are in dispute regarding [defendant]--maybe the question of how he was taken from the--his grandmother's apartment--but the specific facts regarding his being taken by the police, his being questioned by the police originally, his being placed in the police station and for the number of hours that I consider from about 12:00 that night until about 5:00 the next morning, I don't believe that those facts are in dispute and the court specifically finds those facts.
I know that this case involved an extreme amount of police investigation into the question of what later became a murder, because [defendant] and the decedent knew each other, and this incident . . . involved itself around the address of 259 Van Nostrand Avenue, where both of them lived. . . .
I specifically find that the police did arrive there, that they did take [defendant] into custody and that, for the most part, as has been indicated during the course of the initial investigation, which I find the police had the right to do, . . . the conversation was rather innocuous, . . . at least a very civil and courteous kind of conversation that was engaged in between [defendant] and . . . D'Angelo, who really knew him for a number of years, because of sports and things of that nature. And he was taken into custody and then this questioning started.
Now, the police officers' testimony I find to be basically credible and really dispositive of this issue. And the reason for that is that, even some parts of [defendant's] statement do comport to basically what the police were saying, although there are certainly parts which are contradictory. But with respect to the way the questioning was conducted initially, at least that's acceptable; and then, later on, [defendant] himself says that there were breaks in the questioning . . . .
The matter proceeded to trial sometime thereafter. The jury was unable to reach a verdict and was dismissed. The case was reassigned to a second judge with a new defense attorney who, when the trial commenced on October 18, 2006, requested a Miranda hearing to test the legal sufficiency of the Miranda warnings given to defendant. The only witness called by the State was D'Angelo, who could testify only to the administration of the first of the three Miranda warnings.
On direct, the State steered clear of D'Angelo's earlier testimony detailing the entry into the senior-citizen housing, merely asking, "[D]id you eventually get into [defendant's] apartment?" D'Angelo explained that one of the residents buzzed them in, they went to defendant's apartment, and knocked on the door. D'Angelo, apparently seeking to contradict the first judge's fact-finding, testified that defendant was transported to police headquarters in his vehicle like any other witness. He was not handcuffed, and they did not hold him in any way. In response to a question from the judge, D'Angelo testified that, had defendant been a suspect when he was transported to police headquarters, the police "would have had a radio car with a cage in it. He would have been handcuffed behind his back and patted down before being placed in the vehicle."
D'Angelo then continued with his earlier testimony regarding the initial discussions with defendant, his initial incriminating statement, and the immediate administration of the first Miranda warning. Upon arriving at the homicide bureau, D'Angelo first engaged in small talk with defendant by discussing basketball, then explained that he wanted to "go over what [he] could recall to help [them] in the investigation on the assault." According to D'Angelo, about a minute after the topic came up, defendant "made an inference" that he was involved in the assault. D'Angelo denied asking any question that elicited this statement, testifying that it caught him by surprise because defendant was being treated as a witness. D'Angelo said he stopped the interview and had defendant repeat the statement to Means. At this point, D'Angelo said he verbally informed defendant of his rights. He then read defendant a waiver at about 1:45 a.m. Defendant signed the waiver at 1:51 a.m.
On cross-examination, the new defense attorney, who did not have a transcript of the 2004 hearing, did not attempt to elicit D'Angelo's earlier testimony regarding how the officers sought to gain access into the senior-citizen apartment building. D'Angelo testified that defendant only became a suspect when he indicated that he was involved in the assault. At that point he was verbally advised of his rights, and then about fifteen minutes later the detectives read his rights to him and he signed a waiver of those rights. D'Angelo denied being able to fully reconstruct everything that happened between midnight and 1:51 a.m. when defendant signed the waiver, although he denied questioning defendant during this time frame.
The State then rested and defense counsel expressed surprise that the State was not calling Means and Heaney as witnesses to the second and third waivers and interrogations. The State argued that D'Angelo established beyond a reasonable doubt that the first Miranda warning was "complete, legally sufficient and the waiver was continuous throughout the entire interrogation" that took place over the next seventeen hours because defendant was in continuous police custody. The second judge noted that the rights waiver form was "completely in compliance with the law," and defense counsel then argued that the State had not established the circumstances of the second and third interrogations or the physical and emotional circumstances of defendant at the time of these interrogations.
The judge then placed his decision on the record. He found that D'Angelo went to defendant's residence "under the understanding that he was a witness and not culpable in any way." He further found that the police requested that [defendant] accompany them to their office for the purpose of securing information from a witness. In no way was the [d]efendant considered a suspect. That is evident from the fact he was neither handcuffed nor secured in any way by either or any of the [o]fficers at the scene.
The testimony indicates standard operating procedure if the [d]efendant had been considered a suspect would be to handcuff him and place him in the rear of a marked patrol car which was available and did have what's referred to as a cage and a chain separation between the driver and occupant in the rear area of the car. That was not utilized here and the [d]efendant was simply transported in the rear of the vehicle occupied by the witness and his partner.
. . . . [D'Angelo] also indicated that at no point was this [d]efendant in what they considered a suspect at that time when he was brought to headquarters. He was placed in an interview room for the purposes of securing information from a witness. He was there for some period of time during which a casual social discussion regarding basketball and other social matters was engaged in by the [d]etective and the [d]efendant, again, further indicating the nature of the [d]efendant as a witness rather than a suspect.
There were preliminary matters to be resolved of a social nature, as well as making coffee or bringing coffee into the room which I imagine is just a way of making the witness feel comfortable being prepared to respond to questions regarding an incident.
Some time during that period of time, the [d]efendant, not in response to any interrogation by the [o]fficer spontaneously indicated he was more than just a witness, may have been a participant.
The judge found that defendant was thereafter fully and completely advised of his rights and he knowingly and voluntarily agreed to waive them. He found no significant break in the interrogation over the next seventeen hours and concluded that the first waiver was continuous and applied throughout this seventeen-hour period without any further need to again advise defendant of his rights. Thus, he denied the motion to suppress all three statements and called for the jury, which later convicted defendant of felony murder, armed robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THE TWO-STEP, QUESTION-FIRST INTERROGATION TECHNIQUE WHICH WAS USED IN THIS CASE--WHERE A DEFENDANT WHO IS IN CUSTODY IS INTERROGATED WITHOUT MIRANDA WARNINGS UNTIL HE INCRIMINATES HIMSELF, AND THEN THE INTERROGATION IS REPEATED WITH WARNINGS- -CLEARLY VIOLATED THE DEFENDANT'S STATE-LAW RIGHT AGAINST COMPELLED SELF-INCRIMINATION AS WELL AS HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.
POINT II - AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below)
POINT III - THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION WAS CLEARLY INDICATED BY THE RECORD. (Not Raised Below)
Where a judge has complied with Rule 1:7-4(a), our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990). [State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
Thus, we owe no deference to a judge's legal conclusions.
Defendant first argues that, based on the first "judge's factual conclusions at the motion to suppress, he was subjected to an improper 'two-step' questioning procedure while he was in police custody[,] which amounted to unwarned questioning, up to the point he incriminated himself, and then warned questioning thereafter which went over the same subject matter." Citing Missouri v. Seibert, 542 U.S. 600, 612-13, 124 S.Ct. 2601, 2611, 159 L.Ed. 2d 643, 656 (2004), and State v. O'Neill, 193 N.J. 148, 179-81 (2007), he urges that such a questioning procedure violates a suspect's federal and state privileges against self-incrimination. He contends that his first statement should have been suppressed under this prohibition and the second and third statements should have been suppressed as the "fruits of the poisonous tree."
As a preliminary matter, the State argues that defendant's claim of an impermissible two-step interrogation was not raised below because "[d]efendant did not challenge the interrogation on this basis in the trial court."*fn7 Defendant initially sought to suppress his three statements on the basis that he did not knowingly and voluntarily waive his constitutional rights. At the second Miranda hearing, defendant contended that the first waiver he signed did not cover all three statements provided to police. An issue is considered raised below even if the defendant appeals a ruling based on a different theory. See State v. Gruber, 362 N.J. Super. 519, 530 (App. Div.) (court found that the "tenor" of the argument was the same as that raised below, even if the defendant raised new factual distinctions), certif. denied, 178 N.J. 251 (2003); State v. Ross, 335 N.J. Super. 536, 541 (App. Div. 2000) (issue of racial profiling was raised below in suppression hearing even if no evidence of selective enforcement was presented), certif. denied, 167 N.J. 637 (2001). Here, although the theory on which defendant relies for suppressing his statements is different, the underlying question of whether the statements were obtained in violation of defendant's rights to counsel and against self-incrimination remains the same. Thus, we will consider the issue on the merits.
As to the merits, the State contends that defendant was not in custody when he made the initial incriminating statement, despite the first judge's fact-finding, which it urges was not a legal finding for Miranda purposes because the first judge did not suppress any statements made prior to the first Miranda warning. Because this issue was not raised below, the State contends that neither judge made any "explicit factual findings as to the moment defendant was subjected to custodial interrogation." It also urges that the circumstances of this case "are easily distinguished from those of O'Neill."
The United States Supreme Court addressed two-step questioning in Seibert. The Court considered "a police protocol for custodial interrogation that call[ed] for giving no warnings of the rights to silence and counsel until interrogation ha[d] produced a confession." Seibert, supra, 542 U.S. at 604, 124 S.Ct. at 2605, 159 L.Ed. 2d at 650. The interrogating officer then followed the confession with "Miranda warnings and then [led] the suspect to cover the same ground a second time." Ibid. At issue was the admissibility of the warned statement. Ibid.
Seibert had been arrested at 3:00 a.m. in connection with the death of her son and burn injuries suffered by a mentally ill teenager living with the family. Id. at 604, 124 S.Ct. at 2605-06, 159 L.Ed. 2d at 650. Seibert was taken to the police station, left alone for fifteen to twenty minutes, and then questioned without Miranda warnings for thirty to forty minutes. Id. at 604-05, 124 S.Ct. at 2606, 159 L.Ed. 2d at 650. After Seibert finally admitted that she knew the teenager was meant to die in the fire, she was given a twenty-minute break. Id. at 605, 124 S.Ct. at 2606, 159 L.Ed. 2d at 650. A tape recorder was then turned on and Miranda warnings were given. Ibid. After Seibert signed the Miranda warning card and waived her Miranda rights, the questioning resumed with the officer confronting her with her prewarning statements. Ibid.
After being charged with murder, Seibert sought to exclude her prewarning and postwarning statements. Id. at 605, 124 S.Ct. at 2606, 159 L.Ed. 2d at 651. The trial court excluded the first but admitted the second. Id. at 606, 124 S.Ct. at 2606, 159 L.Ed. 2d at 651. Seibert was convicted of second-degree murder. Ibid. The Missouri Court of Appeals affirmed. Ibid. The Missouri Supreme Court reversed, holding that the second statement was the product of the prewarned statement in violation of Miranda. Id. at 606, 124 S.Ct. at 2606-07, 159 L.Ed. 2d at 651. The Supreme Court granted certiorari to resolve a split in the Courts of Appeals. Id. at 607, 124 S.Ct. at 2607, 159 L.Ed. 2d at 651.
Justice Souter, writing for a plurality of the Court,*fn8 observed:
When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed "interrogation practices . . . likely . . . to disable [an individual] from making a free and rational choice" about speaking, [Miranda, supra,] 384 U.S. at 464-65, 16 L.Ed. 2d 694, 86 S.Ct. 1602, and held that a suspect must be "adequately and effectively" advised of the choice the Constitution guarantees, id. at 467, 16 L.Ed. 2d 694, 86 S.Ct. 1602. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.
Just as "no talismanic incantation [is] required to satisfy [Miranda's] strictures," California v. Prysock, 453 U.S. 355, 359, 69 L.Ed. 2d 696, 101 S.Ct. 2806 (1981) (per curiam), it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. "The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda.'" Duckworth v. Eagan, 492 U.S. 195, 203, 106 L.Ed. 2d 166, 109 S.Ct. 2875 (1989) (quoting Prysock, supra, at 361, 69 L.Ed. 2d 696, 101 S.Ct. 2806). The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment. [Id. at 611-12, 124 S.Ct. at 2609-10, 159 L.Ed. 2d at 654-55 (footnote omitted).]
Citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963), Seibert argued that her second confession should be barred. Seibert, supra, 542 U.S. at 612 n.4, 124 S.Ct. at 2610 n.4, 159 L.Ed. 2d 655 n.4. However, the Supreme Court pointed out that in Oregon v. Elstad, 470 U.S. 298, 300, 105 S.Ct. 1285, 1288, 84 L.Ed. 2d 222, 226 (1985), it had rejected application of the Wong Sun fruits doctrine. Seibert, supra, 542 U.S. at 612 n.4, 124 S.Ct. at 2610 n.4, 159 L.Ed. 2d 655 n.4. Quoting Elstad, the Seibert Court observed: "[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," did not "so tain[t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." [Elstad, supra, 470 U.S.] at 309, 84 L.Ed. 2d 222, 105 S.Ct. 1285. Elstad held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318, 84 L.Ed. 2d 222, 105 S.Ct. 1285. In a sequential confession case, clarity is served if the later confession is approached by asking whether in the circumstances the Miranda warnings given could reasonably be found effective. If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning. [Ibid.]
However, the Court distinguished Seibert from Elstad: "By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." Id. at 613, 124 S.Ct. at 2610, 159 L.Ed. 2d at 655. The Court concluded:
Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and "depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Moran v. Burbine, 475 U.S. 412, 424, 89 L.Ed. 2d 410, 106 S.Ct. 1135 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle. [Id. at 613-14, 124 S.Ct. at 2611, 159 L.Ed. 2d at 656.]
The Supreme Court thus affirmed the Missouri Supreme Court's judgment, "[b]ecause the question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, [and thus] Seibert's postwarning statements are inadmissible." Id. at 617, 124 S.Ct. at 2613, 159 L.Ed. 2d at 658.
Two years later, the Third Circuit found that Seibert contained a five-factor test determining the admissibility of a post-Miranda confession that was part of a two-step interrogation:
(1) "[T]he completeness and detail of the questions and answers in the first round of interrogation";
(2) "[T]he overlapping content of the two statements";
(3) "[T]he timing and setting of the first and the second" rounds;
(4) "[T]he continuity of police personnel"; and
(5) "[T]he degree to which the interrogator's questions treated the second round as continuous with the first." [United States v. Kiam, 432 F.3d 524, 532 n.8 (3d Cir.) (quoting Seibert, supra, 542 U.S. at 615, 124 S.Ct. at 1612, 159 L.Ed. 2d at 657), cert. denied, 546 U.S. 1223, 126 S.Ct. 1453, 164 L.Ed. 2d 149 (2006).]
Shortly after Kiam was decided, we considered an alleged two-step interrogation in State v. O'Neill, 388 N.J. Super. 135 (App. Div. 2006), rev'd, 193 N.J. 148 (2007), in the context of an appeal from a ruling on the defendant's suppression motion. The defendant was being held on unrelated charges in a detention cell at the Harrison Police Department when officers from the Union City Police Department questioned him about a homicide. Id. at 137. The questioning began at 3:20 p.m. Ibid. The officers had received information that the defendant was in possession of a gun in the time frame surrounding the homicide. Ibid.
The officers questioned the defendant about his activities during the four hours surrounding the murder of a taxi driver. Ibid. After the defendant gave an account of his activities, "he was moved from the holding cell to the patrol commander's office." Ibid. The defendant then admitted that he was at the Solda Espana bar*fn9 to purchase marijuana from "V." Ibid. The defendant also stated that V had instructed him to take a cab to an intersection in Kearny. Ibid. The defendant admitted that he thought V and V's friend were going to rob the taxi driver and that he would be paid for directing the taxi driver to that intersection. Ibid. By then, it was 4:45 p.m., id. at 138, the questioning having gone on for one hour and twenty-five minutes.
The officers stopped the defendant at this point and advised him of his Miranda rights. Ibid. The defendant then agreed to waive his rights and signed a waiver-of-rights form at 4:46 p.m. Ibid. The defendant subsequently gave two taped statements to the officers, which were recorded and played for the trial judge at the suppression hearing. Ibid. The first one began at 5:20 p.m. and was preceded by another Miranda warning. Ibid. The second one began at 8:47 p.m. with the defendant acknowledging that he had been apprised of his Miranda rights. Ibid.
In his first statement, the defendant denied shooting the taxi driver and claimed that he got out of the cab before the driver reached the designated intersection and ran to his home in Kearny. Id. at 138-89. During his second statement, the defendant claimed that he accidentally shot the taxi driver. Id. at 139. The defendant did not testify at the suppression hearing. At its conclusion the judge determined beyond a reasonable doubt that the defendant understood his rights before giving the second taped statement. Id. at 140-41. He found that there was no requirement that his rights be read again before the second statement and denied the defendant's application to suppress that statement. Id. at 140-41. The defendant was later tried and convicted and on appeal argued that he was in custody when the officers began to interrogate him in the holding cell, which triggered a duty to advise him of his rights. Id. at 144-45. Because that was not done, he relied on Seibert for the proposition that the subsequent statements were inadmissible. Id. at 145.
In discussing Seibert, we found that, because Justice Kennedy "concurred with the plurality on the narrowest grounds, the reasoning expressed in his concurrence is the holding of this [c]court." Id. at 148. Justice Kennedy urged that Elstad should control the admissibility of postwarning statements "unless the deliberate two-step strategy was employed." Id. at 147 (quoting Seibert, supra, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed. 2d at 661-62 (Kennedy, J., concurring)). In that case, "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Ibid. (quoting Seibert, supra, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed. 2d at 661-62 (Kennedy, J., concurring)).
We observed that the officers did not use the prewarning statement to obtain "a repeat or duplicate postwarning statement." Id. at 148. We noted that the defendant had been fully advised of his rights before the second statement, and the record supported the judge's determination that the defendant freely, voluntarily, and knowingly waived those rights. Ibid. Additionally, "the contents of [the] defendant's statements were substantially different and the statements, taken at different times and locations, cannot be objectively viewed as a mere continuation of earlier questions and responses." Ibid. As a result, we affirmed under Elstad. Id. at 148-49.
The Supreme Court reversed, suppressed the statements, and ordered a new trial. O'Neill, supra, 193 N.J. at 184-85. The defendant argued in part that our decision would "allow the police 'to run roughshod over the Miranda rights of criminal defendants by questioning them without Miranda warnings until they "crack" and then repeating the whole interrogation once the defendant is properly warned.'" Id. at 165. The State argued in part "that the detectives' initial questioning of [the] defendant, while he was held on unrelated charges in the Harrison Police Department, did not constitute a custodial interrogation for Miranda purposes until [the] defendant incriminated himself in the . . . murder investigation." Id. at 166.
The Court discussed Miranda and then concluded that the defendant was in custody for Miranda purposes while he was in the holding cell at the Harrison Police Department, because he was "behind bars, deprived of his freedom, questioned by homicide detectives in a coercive police atmosphere without having been told of his right to remain silent or retain an attorney." Id. at 167-69. The fact that he was being held on unrelated charges did "not alter the equation." Id. at 169.
When the two homicide detectives began to interrogate [the] defendant, he was confined in a jail cell, and the detectives already possessed information that he was armed with a handgun at the time of the cab driver's shooting. The detectives did not come to have a casual chat with [the] defendant, but to question him concerning his whereabouts at the time of the driver's killing. At the very least, [the] defendant was a suspect on a potential gun charge and a person of interest in a murder investigation. For twenty minutes, while in his cell, [the] defendant was questioned about his every move during the timeframe of the murder. Then, the detectives transferred [the] defendant to the patrol commander's office, where he was interrogated for another hour and fifteen minutes on the same subject. When [the] defendant told the officers that, on the evening in question, he had gone to a bar to purchase marijuana, he had admitted at that point to an offense--and still no warnings were forthcoming.
Only after [the] defendant admitted to participating in a plan to rob a cab driver, in the same locale where the victim was known to have picked up his last fare, did the detectives finally advise [the] defendant of his rights. By then, however, [the] defendant had committed himself to a story, and incriminated himself, and in all likelihood crossed a psychological bridge from which there was no turning back. Because the detectives failed to inform [the] defendant of his Miranda rights during the initial ninety-five minute custodial interrogation, under federal law and our state law privilege, no statement made during that period could be used against him. [Miranda, supra, 384 U.S.] at 479, 86 S.Ct. at 1630, 16 L.Ed. 2d at 726; see also State v. O'Neal, 190 N.J. 601, 616 (2007). [Id. at 169-70 (emphasis added).]
The Court then considered "the unsettled state of the law that has emerged from the United States Supreme Court's [Elstad and Seibert] decisions on successive unwarned and warned interrogations." Id. at 170. It concluded that the Elstad and Seibert opinions "have sown confusion in federal and state courts" and concluded that "[t]he shifting sands of federal jurisprudence provide no certainty concerning the standard that might apply to the next set of slightly different facts." Id. at 175. As a result, the Court "decided to turn to our state law privilege against self-incrimination to decide the issue before [it]." Ibid.
First, the Court found, "The two-step, 'question-first, warn-later' interrogation is a technique devised to undermine both the efficacy of Miranda and our state law privilege." Id. at 180. It determined 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." Ibid.
Therefore, as a matter of state law, we hold that 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 [the] 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 officers conducted both the unwarned and warned interrogations; (4) whether the officers informed [the] 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.
Under that formula, however, great weight should be given if the police informed a suspect that his admissions made prior to being given the Miranda warnings could not be used against him. Providing that information would strongly suggest that the defendant made any post-warning incriminating statements knowingly, voluntarily, and intelligently. See Seibert, supra, 542 U.S. at 616, 124 S.Ct. at 1612, 159 L.Ed. 2d at 658. However, the failure to give that instruction will not automatically render the defendant's post-Miranda statements inadmissible. See Id. at 616 n.7, 124 S.Ct. at 2612 n.7, 159 L.Ed. 2d at 658 n.7. [Id. at 180-81.]
The Court cautioned that it was "not pronouncing a bright-line rule." Id. at 181. Where prewarning questioning is brief and a defendant's statements are barely incriminating and there is a substantial break in the time and circumstances of the interrogation, suppression might not be appropriate. Ibid. Courts can also consider the defendant's prior experience with the police and the courts. Ibid. "In a two-step interrogation case, courts must view the totality of the circumstances in light of the relevant factors and then determine whether the unwarned questioning and admissions rendered the Miranda warnings ineffective in providing a defendant the opportunity to exercise the privilege." Id. at 181-82. Ultimately, the Court concluded that the two-step interrogation deprived the defendant of an "ability to knowingly, voluntarily, or intelligently waive" his right to remain silent. Id. at 184.
Here, with respect to defendant's interrogation, Seibert and O'Neill only apply to custodial two-step interrogations. Thus, the moment when defendant was taken into custody becomes critical. A custodial interrogation occurs when "there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1997) (citations omitted). Where a suspect blurts out a statement that is not in response to police questioning, the statement is admissible even if police did not advise the suspect of his Miranda rights. State v. Adams, 127 N.J. 438, 446-47 (1992); see also State v. Ebert, 377 N.J. Super. 1, 9-10 (App. Div. 2005) (Miranda requirements do not apply to routine questions during the initial phase of an investigation where the subject is not a target of the investigation).
We are presented in this case with two diametrically opposite judicial fact-findings respecting the moment defendant was taken into custody. The first judge found on the testimony before her that defendant was taken into custody when he was removed from his grandmother's apartment. That finding is supported by substantial evidence in the record that was before the first judge. The second judge found that defendant was not taken into custody until after he made the first incriminating statement, a finding supported by substantial evidence in the limited record before the second judge.
These divergent fact-findings must be resolved in order to permit us to determine whether defendant was subjected to an impermissible two-step interrogation. We have the authority to remand a matter for further fact-findings to determine an issue on appeal. R.S. v. Knighton, 125 N.J. 79, 100 (1991) (remand for further considerations where insufficient information in record to determine whether statements made to medical therapists by abused children were admissible under an exception to the hearsay rule); Accardi v. Accardi, 369 N.J. Super. 75, 87-92 (App. Div. 2004) (remand required when trial court's findings of fact were insufficient); Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501, 522 (App. Div.) (remand to determine if evidence sufficient to establish that diagnosis of gender dysphoria was made using accepted diagnostic techniques), certif. denied, 170 N.J. 211 (2001); James v. Chevron USA, Inc., 301 N.J. Super. 512, 523 (App. Div. 1997) (remand for hearing on any prejudice from two-year delay in service of process), aff'd sub nom. James v. Bessemer Processing Co., 155 N.J. 279 (1998); Makopoulos v. Walt Disney World, Inc., 221 N.J. Super. 513, 518-19 (App. Div. 1987) (record insufficient to determine personal jurisdiction, outlining specific areas of inquiry trial court should pursue), certif. denied, 117 N.J. 661 (1989); Garcia v. Snedeker, 199 N.J. Super. 254, 256-57 (App. Div. 1985) (remand for development of factual record on issue of whether defendant should be equitably estopped from claiming benefit of statute of limitations). We and the Supreme Court have also remanded when there has been a change in the law. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285 (2004) (remand for application of new standards for "aggravated circumstances" established on appeal); Riggs v. Twp. of Long Beach, 101 N.J. 515, 523-24 (1986) (remand for application of new law to relevant facts is appropriate); Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 48, 55 (App. Div. 2004) (remand to reconsider height variance based on new standards articulated by Appellate Division); Connell v. Parlavecchio, 255 N.J. Super. 45, 51 (App. Div.) (in light of retroactive New Jersey Supreme Court decision, case remanded on issue of damages), certif. denied, 130 N.J. 16 (1992).*fn10
Accordingly, we remand this matter to the second judge for reconsideration of his fact-finding respecting the moment defendant was taken into custody. The second judge shall consider the transcripts of the hearing before the first judge as well as the transcripts of the hearing conducted before him. He may also permit the parties to expand the record with such additional testimony as will be of assistance in determining the moment when the police took defendant into custody. Once that issue has been resolved, the judge shall, if appropriate, determine whether defendant was subjected to an impermissible two-step interrogation. If the second judge ultimately concludes that defendant's statements to the police should be suppressed and a new trial ordered, he shall promptly advise us of that outcome so that we may dismiss this appeal. Otherwise, the judge shall find the facts and state his conclusions of law in a written decision prepared in accordance with the requirements of Rule 1:7-4(a), which shall promptly be transmitted to us no later than ninety days from the date of this opinion.
Remanded in part for further findings of fact and conclusion of law. We retain jurisdiction.