August 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
DAVID WINKLER, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-11-0262.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Sabatino and Ashrafi.
By our leave, the State appeals from an order suppressing defendant David Winkler's videotaped statement for violation of defendant's Fifth Amendment right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). We affirm.
Defendant was employed as a building management specialist for the New Jersey Department of the Treasury. He was responsible for managing the First Avenue Warehouse in Trenton, where the State kept surplus property including computer equipment and furniture.
On April 10, 2008, a large force of State Troopers arrested defendant at gunpoint as he came to work at 7:15 in the morning at the warehouse. The State had obtained an arrest warrant following an investigation of unauthorized disposition of State property. The State alleged that defendant and other State employees at the warehouse had sold state-owned scrap metal to an unauthorized recycling company and split the money among themselves. The State also alleged that defendant took state-owned computer equipment for his own use, or gave it to friends, family, and juvenile inmates who had worked at the warehouse.
Upon his arrest, defendant was immediately advised of his Miranda rights. Later that morning at a State Police facility, defendant was again advised of Miranda rights on videotape, and he was questioned by State Police detectives. He answered the questions, and at the end of the interview, he signed a card indicating that he had waived his rights. The State proposed to use the videotaped interview as evidence in prosecuting defendant.
In November 2008, a Mercer County grand jury indicted defendant on charges of second-degree conspiracy, N.J.S.A. 2C:5-2; two counts of second-degree official misconduct, N.J.S.A. 2C:30-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and third-degree misapplication of government property, N.J.S.A. 2C:21-15.
Before trial, defendant moved to suppress his April 10, 2008 statements to the police contending that he did not voluntarily waive his Miranda rights. The trial court held a Miranda hearing at which State Trooper Vincent Greene was the only witness. The videotaped interview was also admitted in evidence.
The recorded interview began at 8:37 a.m. and lasted until 10:06 a.m. At the start, the following exchange took place between Detective Sergeant Greene and defendant:
Greene: Before asking you any questions, it's my duty to inform you of your Miranda rights. You have the right to remain silent or refuse to answer any questions. Do you understand that right?
Greene: Anything you say can be used against you in a court of law. Do you understand that?
Greene: You have the right to consult with an [attorney] and have them present before and during questioning. Do you understand that?
Greene: If you cannot afford an attorney one will be provided if you so desire prior to any questioning. Do you understand that right? Defendant: Correct.
Greene: A decision to waive these rights is not final and you may withdraw your waiver whenever you wish before and during questioning. Do you understand that right? Defendant: Correct.
Greene: Do you have any questions concerning your Miranda rights?
Greene: Do you wish to waive your rights and provide me with a statement?
Greene: You're not going to waive your rights?
Defendant: Oh, Ill talk to you. I don't know what you're talking about. That's why I want to find out.
Greene: Ok. Are you under the influence of alcohol or drugs at this time?
Greene: Have you been threatened or coerced into providing this statement?
Greene: Have you been promised any compensation or reward for your statement?
Greene: Is this statement that you're about to provide truthful and accurate to the best of your knowledge?
Defendant: To the best of my knowledge, yes. Greene: Do you have any disabilities that would prevent you from providing me with a taped statement or reviewing your statement at the conclusion of this interview?
Defendant: Could you redo that please? Greene: Sure. Do you have any disabilities that would prevent you from providing me with a taped statement?
Greene: Or reviewing this statement at the conclusion of this interview?
Defendant: No. [(Emphasis added.)]
Following this exchange, Sergeant Greene commenced questioning defendant about some preliminary identification information and then the substance of the charges against him.
Roughly halfway into the questioning, the following exchange occurred:
Greene: Honestly, please start helping yourself.
Defendant: Should I, should I talk to a lawyer? Greene: You can do whatever you decide. I'm trying to tell you to be honest and help yourself.
Greene: You're a decent - I'm telling you right now I know you're -
We've dealt with you and you're a decent guy but you're [not]*fn1 helping yourself right now.
At the end of the interview, the Trooper asked defendant to sign a waiver card listing his Miranda rights. The card stated: "I acknowledge that I have been advised of the constitutional rights found on the reverse of this card." The card was signed by defendant, Trooper Greene, and a witnessing Trooper, and it was dated 4/10/08 at 8:37 a.m.
After hearing the evidence and viewing the video recording, the trial court found that defendant's invocation of his right to remain silent was "clear and unequivocal," and that his questioning should have ceased after that invocation. The trial court granted defendant's motion and suppressed the statement. An order to that effect was issued on January 29, 2010. The State appeals from that ruling.
The State argues that the trial court did not adequately consider the totality of the circumstances of the interview and the evidence that defendant voluntarily was willing to waive his rights and speak to the police. At the hearing, Greene testified that suspects often misunderstand the question: "Do you wish to waive your rights and provide me with a statement?" Greene said that his next question was intended to clarify defendant's intent after he initially said "no" because it was possible that defendant did not fully understand what he was saying. The State argues that defendant's immediately saying "Oh, I'll talk to you" was a clear waiver of his Fifth Amendment right against self-incrimination.
On a suppression motion, "[a] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We do not engage in an independent assessment of the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We defer to those findings of the trial court influenced by the judge's hearing and seeing of the witnesses and by his opportunity to have the "feel" of the case. State v. Johnson, 42 N.J. 146, 161 (1964). Where, however, the facts are not in dispute and the issue is one of application of law to the undisputed facts, our standard of review is plenary. See State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005); State v. Alvarez, 238 N.J. Super. 560, 564-65 (App. Div. 1990).
We agree with the State that whether defendant waived his rights must be determined from an examination of the totality of the circumstances. See State v. Adams, 127 N.J. 438, 447-48 (1992). In our State prosecutions, the State must prove that defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights against self-incrimination by proof beyond a reasonable doubt. Id. at 447.
If a defendant invokes his right to remain silent, his request must be "scrupulously honored." State v. Johnson, 120 N.J. 263, 282 (1990) (quoting Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 325-26, 46 L.Ed. 2d 313, 320-21 (1975)). A valid waiver "cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation." Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed. 2d 488, 496 (1984) (quoting Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed. 2d 378, 386 (1981)).*fn2
When a defendant makes an ambiguous assertion of his right to remain silent, the police must stop the questioning until the ambiguity has been resolved. In Johnson, supra, the Court stated:
[W]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed. [120 N.J. at 283 (quoting State v. Wright, 97 N.J. 113, 120 and n.4 (1984)).]
In this case, defendant's "no" answer was not ambiguous in itself, but there was no immediate violation of his Fifth Amendment rights in Trooper Greene's one additional, non-coercive question to confirm that defendant did not wish to answer questions. When defendant immediately gave a contradictory answer, the Troopers were obligated to clarify the inconsistency and ensure that defendant understood his rights and was willing to waive those rights voluntarily, knowingly, and intelligently. The succeeding questions by Trooper Greene did not address the inconsistent answers and the ambiguity they created. The Troopers merely accepted the second answer, that defendant was willing to talk, as expressing unequivocally defendant's waiver.
The facts of this case are similar to those in State v. Fussell, 174 N.J. Super. 14 (App. Div. 1980). In that case, the following exchange occurred during custodial interrogation of the defendant:
Question: Is it your desire to give a statement without the assistance of a lawyer?
Defendant: I would like to wait for legal counsel after taking [sic], I would like him to read the statement before I answer.
Question: Don't you want to give us this statement?
Defendant: Sure, I'll give you a statement.
[Id. at 19.]
The defendant then confessed to the charges. Ibid. We reversed the trial court's finding that the defendant had waived his right to counsel. Id. at 20. The defendant's request for counsel, while perhaps ambiguous, was nonetheless sufficient to require the police to halt the interrogation "until it was clearly determined that defendant desired to proceed without counsel." Id. at 21.
In Johnson, supra, 120 N.J. at 275-84, the Court held that defendant's repeated answering police interrogation about a murder by saying that he could not or did not want to talk about it should have been interpreted as a possible invocation of his right to remain silent. The police had an obligation to clarify his intent before resuming interrogation about the murder. Id. at 283-84.
Here, at best, defendant was ambiguous in stating his intention as to waiving his Miranda rights. He gave two successive contradictory answers. The second answer did not serve to "clarify" his initial "no" answer; it created the ambiguity. While it could be that defendant was correcting himself, the police had an obligation to clarify defendant's understanding and intent. Before continuing with the questioning, the Troopers were required to resolve the ambiguity - possibly by explaining defendant's rights again and the meaning of the word "waive," and by permitting defendant to state his intention unequivocally. The failure of the police to do so supported the trial court's conclusion that the State did not meet its burden of proving beyond a reasonable doubt that defendant had waived his right to remain silent.
Having reached this conclusion with respect to the initial waiver of defendant's rights, we need not address whether defendant's reference to speaking to a lawyer in the middle of the questioning also required that the questioning cease pending clarification in accordance with Edwards, supra, 451 U.S. at 482, 101 S.Ct. at 1883, 68 L.Ed. 2d at 384, and Wright, 97 N.J. at 120.