On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-08-1014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
On January 30, 2008, Elizabeth O'Brien was murdered in her home in Jefferson Township. On May 2, 2008, defendant Demetrius M. Diaz-Bridges confessed to the murder. In July 2008, a Morris County Grand Jury charged defendant with murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1a(1) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count five). On May 8 and 27, 2009, the trial court conducted an N.J.R.E. 104(c) hearing concerning the admissibility of various statements defendant made to the police, including his May 2, 2008 confession. On June 8, 2009, the court entered an order supported by a written opinion of June 3, 2009, later amended by a supplemental opinion of June 8, 2009, that suppressed defendant's confession. On July 9, 2009, we granted the State's motion for leave to appeal. We affirm in part, and reverse in part.
On January 31, 2008, at approximately 2:30 a.m., after learning that defendant, then nineteen years old, was an acquaintance of the victim's two teenage sons and may have been the last person to see the victim alive, detectives from the Morris County Prosecutor's Office and the Jefferson Township Police Department proceeded to a residence where defendant was staying which was located near the victim's home. The detectives requested defendant accompany them to the Jefferson Township Police Headquarters to discuss the murder. Defendant agreed. Upon arrival at police headquarters, the detectives gave defendant his Miranda*fn1 warnings. Defendant acknowledged his rights, waived them, and responded to the detectives' questions. After defendant submitted to a polygraph examination, the police took defendant's DNA sample, and his fingerprints. Defendant also permitted the police to search his room where he was then residing. Approximately two hours after defendant left police headquarters, the detectives requested that he return for additional questioning. Defendant complied; and before questioning, the police again advised him of his Miranda rights. Defendant did not provide the police with any inculpatory statements during the two interrogations.
During the next several months, the police developed evidence that led them to believe defendant had committed the murder. On ascertaining that defendant had moved to Raleigh, North Carolina, to live with his mother and stepfather, Detective Evelyn Tasoulas of the Morris County Prosecutor's Office telephoned defendant's stepfather who, in turn, had defendant telephone the detective to arrange a meeting with the New Jersey detectives in Raleigh.
On May 1, 2008, Tasoulas, and then Sergeant Stephen Wilson and Detective Supervisor Don Dangler of the Morris County Prosecutor's Office, Detective Mike Curullo of the Morris County Sheriff's Office, and Detective James Caruso of the Jefferson Police Department drove to North Carolina to meet with defendant. On May 2, 2008, pursuant to discussions with defendant and his stepfather, the detectives met defendant in a parking lot of a Dunkin' Donuts store in Raleigh, where defendant agreed to accompany the detectives to the Raleigh Police Department Headquarters for questioning. En route to the police station, the police did not question defendant concerning the Jefferson Township murder, nor did defendant volunteer any inculpatory statements concerning the murder. On arrival at the police station, the detectives placed defendant in a room equipped with video and audio-recording capabilities where Detectives Dangler, Wilson and Caruso interrogated him. The entire interrogation was video recorded.*fn2
At the commencement of the interrogation, the detectives reminded defendant that he had outstanding warrants*fn3 in New Jersey for matters unrelated to the murder, and that he had the right to have a public defender present for questioning concerning those unresolved matters. The detectives also informed defendant that they wanted to question him about the murder. The detectives gave defendant his Miranda warnings at 11:25 a.m.; defendant waived his Miranda rights and began to answer the detectives' questions concerning the murder.
During the first three hours of the interrogation, defendant denied committing the murder, telling the detectives of his alleged activities on the day of the homicide. Indeed, defendant laid blame for the murder at the feet of the victim's son, Tyler O'Brien, asserting that Tyler had confessed committing the murder to him. At approximately three hours and eleven minutes into the interrogation, Wilson told defendant that he believed defendant was not telling them the truth. For the next seventeen minutes, the detectives attempted to persuade defendant to reveal information they believed he was holding back. In so doing, Wilson told defendant "You know the truth comes out. You know, sooner or later it comes out of the darkness and into the light. And, now's the time. Now is the time. Okay? It's gonna come out. You still want to hold onto it?"
At three hours and twenty-eight minutes, Wilson told defendant that he believed defendant murdered O'Brien and asked defendant why he had done so. Defendant again denied involvement in the crime. At this point, defendant began to sniffle and cry.
For approximately the next fifteen minutes, the detectives repeatedly told defendant that they believed he committed the murder and attempted to persuade him to tell them what had happened. Despite the detectives' continued insistence that defendant tell them what happened because it would make him feel better, because the truth will eventually come out, and for the sake of his daughter, defendant continued to deny committing the murder. At three hours and forty-two minutes into the interrogation, after being asked again, "What happened that day?," and with Detectives Caruso and Wilson consoling defendant by placing their hands on his shoulder, defendant responded to the inquiry by asking: "Can I just call my mom first?" After asking that question, defendant continued to cry.
The detectives continued in their attempts to get defendant to disclose what occurred on the night of the murder. They simultaneously consoled defendant by speaking to him in soft voices, patting him on his back, and rubbing his shoulders. At approximately three hours and fifty-one minutes, defendant regained his composure and confessed to the murder.
Defendant told the detectives that the incident began as an argument between himself and O'Brien with the victim becoming angry because defendant did not have any drugs to give her. He described how he murdered O'Brien by pushing her away from him, causing her to fall and strike her head on a coffee table; by hitting the back of her head three or four times with an exercise weight; and by hiding her body in a closet. He also described his attempt to cover up the events of the murder. The confession occurred over approximately an hour and thirty minutes and ended at approximately five hours and three minutes elapsed time into the interrogation.
After confessing, the detectives asked defendant if he wanted a tissue. Defendant again responded by stating that he wanted to talk to his mother. Wilson informed defendant that they would arrange a telephone call, but wanted defendant to first relax and gather his thoughts, with the intent of taking a more formal statement from defendant. The detectives next took a thirty-five minute break from the interrogation. During the break, defendant again asked if he could talk to his mother, and Dangler replied that they would arrange for the telephone call. After the break, at approximately six hours and forty-three minutes, the detectives gave defendant fresh Miranda warnings and began to take the formal statement before allowing defendant to make the telephone call. Approximately ten minutes later, defendant told the detectives that he felt sick. The detectives interrupted the interrogation for defendant to use the bathroom.
The interrogation resumed approximately five minutes later. Again defendant asked if he could talk to his mother, and, although the detectives assured him that he would be able to, they did not immediately arrange for defendant to telephone his mother. In fact, during the next forty-eight minutes or so, defendant indicated to the detectives that he wanted to talk to his mother eight more times. Although the detectives did not then acquiesce in defendant telephoning his mother, defendant told the detectives that he wanted to continue talking to them. Indeed, Wilson asked defendant: "Do you, do you still wish to talk to us?" In response, defendant told Wilson: "Yes[.] I have no problem talking to you[;] I just want to talk to my mom.
That's it." Defendant then told the detectives that he wanted to tell his mother that he had murdered O'Brien before she heard it from anyone else: "I'd rather talk to her before you put it out because you understand? She's not gonna stay around. She's not, she's not. I want to talk to her before she finds out."
At six hours, four minutes, and fifty seconds elapsed time, Caruso told defendant that the formal statement would take approximately another half hour and that defendant would be finished. Defendant told Caruso: "See[,] I'm not gonna take that long on the phone, only like 2 minutes. A half hour going back through all this is gonna  rip me apart inside." Wilson responded: "So, if you talked, so you're saying that you want to talk to your mom, okay? Look at me." At six hours, five minutes, and thirty-five seconds, defendant responded: "I want to hear her say it's gonna be okay. And (inaudible) I don't have nobody. I have nobody. And this thing is gonna do nothing but make it worse. I just want to hear her say it's gonna be all right, that's it." The detectives then took a break to allow defendant "to relax." On resuming the interrogation approximately fifteen minutes later, defendant again requested to talk to his mother. At six hours and thirty-seven minutes elapsed time, in attempting to get defendant to answer his questions, Caruso told defendant: "We don't have, we're almost done. We don't have that many questions to ask you, just like two or three questions." Defendant replied: "I can't answer no more questions right now, man." Wilson asked defendant if he wanted to take another break and if he still wished to talk to them. Defendant responded: I don't have any problem talking, I just need a minute, I just want to . . . talk to my mom."
Rather than allowing defendant to talk to his mother, the detectives offered him food and drink. At this point in the interrogation, six hours, thirty-nine minutes and twenty-four seconds elapsed time, defendant told the detectives: "I can't do this shit, man. I just want to go home. (inaudible) I'm so sorry, man."
At approximately six hours and forty-eight minutes, the detectives allowed defendant to telephone his mother.
Ma. Nothing. I just wanted to hear your voice. Yeah, but, no, I'm still down here. I don't . . . Ma, I messed up, Ma. Yeah. I don't, I don't . . . I messed up, mom. I don't, I don't know. Help me. I'm so hurt. Oh my God. I messed up bad, Ma. Yeah. I'm not feeling like . . . I'm so . . . sick, man, I'm . . . throwing up. This is not me. And what, man, what? It don't even matter. You cannot do. I'm still down here. I'm at the police station down here but you can't do shit. I just wanted to talk to mommy.
No. I'm in the Raleigh Police Station. Yeah. Cause they were questioning me before we go back. I just wanted you to understand that this is not good. It's not . . . this is not . . . this whole shit is real bad.
It's so bad. Really bad. This is not good, man. I'm so . . . I can't drink nothing, you know. I can't eat. [D]on't even got no . . . appetite. I don't.
They're questioning me cause (inaudible) because they got to go by, I guess, the rules down here too. Yeah. Put mommy on the phone. Mom, I love you. That don't matter though. It don't ...