Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State of New Jersey v. Garry S. Zigich


June 30, 2011


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-09-1327.

Per curiam.


Submitted May 31, 2011

Before Judges Lisa and Sabatino.

Following the denial of his motion to suppress incriminating statements he had made to police officers in a hospital room, defendant Garry S. Zigich, Jr., pled guilty to the first-degree murder of his teenage cousin. See N.J.S.A. 2C:11-3(a)(1) and (2). He was sentenced to a fifty-year custodial term, subject to an 85% parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant now appeals, arguing that the trial court erred in denying his suppression motion, and that his constitutional rights against self-incrimination thereby have been infringed. We disagree, and consequently affirm defendant's conviction.

I. The record provides the following chronology of pertinent events relating to the victim's murder and the questioning of defendant later that day in a hospital room.

On March 18, 2008, the victim, fifteen-year-old Brittany Cena, did not return home from school. Her parents reported to the Toms River police that she was missing. Shortly before 6:00 p.m., the teenager's grandparents found her dead body in the basement of the family residence in Toms River. She had been strangled to death.

At approximately 6:30 p.m., Sergeant Elliot Morgan of the Ocean County Prosecutor's Office arrived at the victim's residence to investigate the death. Morgan learned that defendant, the victim's twenty-four-year-old cousin, had been living in the basement of the premises. He also learned that defendant had gone that day to Riverview Medical Center ("Riverview" or "the hospital") in Red Bank to seek treatment. Accompanied by Detective Randy Petrick of the Toms River Police Department, Morgan headed to the hospital to interview defendant.

At about the same time, another Toms River*fn1 police officer, Detective Brian Lomer, contacted Lieutenant Richard Mangold of the Red Bank Police Department. Lomer informed Mangold that the Toms River police wanted to speak to defendant, whom they believed was at Riverview, in connection with a homicide. Mangold, in turn, instructed two other Red Bank officers, Detective Michael Frazee and Patrolman Robert Gannon, to go to Riverview and locate defendant.

Upon arriving at Riverview, Frazee learned that defendant was in a room near the emergency department. Defendant had checked himself into the hospital, having experienced suicidal ideations. He had been evaluated and his condition was stable. Defendant had been given medication for agitation, although he does not contend that he was in an impaired state when he was questioned by the police officers. He was ready to be transferred to a crisis unit within the hospital, although his transfer was delayed as a result of the officers' arrival.

Frazee found defendant alone and asleep in his room. Frazee's colleague, Gannon, remained outside the room, out of defendant's sight, awaiting the arrival of Morgan and Petrick from Toms River. Meanwhile, Red Bank Patrolman Patrick Kennedy located defendant's truck in the hospital parking lot and secured it.

When Morgan and Petrick arrived at the hospital, they went to defendant's room. They were not dressed in police uniforms, although Morgan wore a jacket with insignia from the prosecutor's office. The officers introduced themselves to defendant, and said that they wanted to ask him some questions. Defendant permitted them to do so.

The interview of defendant in his hospital room began at approximately 8:13 p.m. Morgan and Petrick conducted the interview. A hospital employee, Eujennie Quinland, remained in the room. Morgan placed a tape recorder on the tray next to defendant's bed in plain view, activated it, and began the questioning.

The officers started the interview with general questions that were not of an accusatory nature. The questions dealt primarily with where he lived, who else lived there, and that he had been staying in the basement. Eventually the questions delved into what defendant had been doing that day.

Defendant told the officers that he had returned to the family residence from a friend's house at approximately 7:00 a.m. that day. He stated that prior to arriving home, he began to "hear whispering" and having "really bad racing thoughts." According to defendant, the voices instructed him to "do bad things."

Defendant explained to the officers that when he got home that morning, he knew that his cousin Brittany was the only person there because she had stayed home from school. He stated that Brittany had followed him into the basement after hearing him "talking back to the voices," and that he "told her just to get away."

As defendant recalled it, he tried to explain to his cousin why he was talking, but she began laughing at him. Continuing his narrative, defendant told the officers that he then grabbed Brittany, "put her in a choke hold and threw her on the ground and told her to shut up, it's not funny."

At this point, about ten minutes into the interview, Morgan stopped the interview and made the following statement to defendant, advising him of his Miranda*fn2 rights:

Ok, let me just ah let me just give this to you so we can continue talking to you cause I like to find out what's going on with these voices. Uhm before we ask you any questions, you must understand your rights, ok. You have the right to remain silent. If you give up that right anything you say can be used against you in court. You have the right to talk to an attorney and have him present during the questioning. If you cannot afford an attorney you can apply to the court and one will be appointed to you at no cost. If you wish to answer questions now without an attorney present you have the right to stop answering questions at any time. Do you understand that?

Defendant initially responded that he "kind of, sort of" understood Morgan's statement. However, when asked if he needed further clarification of his rights, defendant stated, "I understand what you said." In addition, defendant signed a written Miranda waiver form indicating that he understood his right to stop answering questions without an attorney present.

Upon receiving these Miranda warnings, which defendant acknowledged that he understood, the questioning continued. Defendant reiterated that he was hearing voices on March 18, that his cousin Brittany began laughing at him, that the voices "told [him] to hurt her" and that he "[c]hoked her and threw her on the ground."

After Morgan posed a few more clarifying questions, defendant stated, "I think I should get a lawyer." At that point, Morgan stopped his questioning. This second portion of the interview lasted approximately five minutes, ending at 8:23 p.m.

Defendant was arrested and subsequently indicted by an Ocean County Grand Jury for the first-degree murder of his cousin.

Prior to trial, defendant moved to suppress the incriminating statements that he had made to the police in his hospital room. He argued that the interview was a form of custodial interrogation, and that the police violated his rights against self-incrimination by failing to administer Miranda warnings to him sooner.

The trial judge, Judge Francis R. Hodgson, denied the motion to suppress after an extensive hearing. The judge considered testimony from five witnesses, including Lieutenant Mangold, Detective Frazee, and Sergeant Morgan for the State, and Quinland and Marilyn Fortunato, a social worker employed by the hospital, for the defense.

In his oral opinion, Judge Hodgson specifically found "beyond a reasonable doubt that the questioning of defendant in the emergency room did not constitute custodial interrogation and that his statement was made voluntarily." Consequently, Judge Hodgson held that the recorded statements would be admissible at trial. Thereafter, defendant entered his conditional guilty plea, preserving his right to appeal the denial of the suppression motion.

In his counsel's brief on appeal, defendant argues that:


Defendant has also filed a pro se supplemental brief, amplifying his contention that his statements at the hospital were made in police custody and involuntary. We now consider these arguments.

II. The procedural safeguards of the Miranda doctrine attach when a criminal suspect is subjected to a custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977). "Any police interview of a person suspected of a crime has 'coercive aspects to it.'" J.D.B. v. North Carolina, 564 U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d ___, ___ (June 16, 2011) (slip op. at 5) (internal citations omitted). However, "[o]nly those interrogations that occur while a suspect is in police custody . . . 'heighte[n] the risk' that statements obtained are not the product of the suspect's free choice." Ibid. (internal citations omitted).

"The determination whether a suspect is in 'custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 615 (2007) (citation omitted); see also J.D.B., supra, 564 U.S. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at ___ (slip op. at 7-8).

The question of whether a suspect is in custody, which is the pivotal issue in this appeal, should be evaluated under the "objective reasonable person test," in which "'custody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely.'" State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994) (citing State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987)); see also Berkemer v. McCarthy, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984).

Courts must assess the totality of the circumstances to determine whether a criminal suspect had an objectively reasonable belief that he or she was free to leave the presence of police officers. See State v. Godfrey, 131 N.J. Super. 168, 177 (App. Div. 1974), aff'd, 67 N.J. 267 (1975); see also J.D.B., supra, 564 U.S. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at ___ (slip op. at 7). This assessment may include such factors as: the officers' articulated intent; the time and place of the interrogation; the length of the interrogation; the nature of the questions; the conduct of the officers; the status of the interrogators, and the status of the subject. See, e.g., State v. P.Z., 152 N.J. 86, 103 (1997) (applying these factors and noting that "[t]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances."); see also State v. Milledge, 386 N.J. Super. 233, 244 (App. Div. 2006) (recognizing that "[w]hether a custodial interrogation exists is fact sensitive and depends upon the totality of the circumstances").

In reviewing the totality of the circumstances here, we first consider the actions of the police and other events on March 18 that transpired before defendant's interview at the hospital room began. Defendant argues that the conduct of the police officers leading up to his interview deprived him of his freedom of action, giving rise to a custodial interrogation. In particular, defendant points to the police bulletin issued for him and his vehicle following the discovery of his slain cousin, the officers' conferring with security personnel at the hospital, the steps taken to secure his truck, and the posting of an officer outside of his hospital room.

We must consider whether, in light of these pre-interview circumstances and events, a reasonable person in defendant's position would believe that he was not free to leave. See P.Z., supra, 152 N.J. at 103. Here, Judge Hodgson was satisfied that "[a]lthough a uniformed officer was stationed outside of the defendant's room, he was out of sight and there's no evidence that defendant even saw the officer or was even aware of his presence. Defendant could not have believed he was in custody if he was not aware of the officer's presence."

The record, as well as the circumstantial inferences that can be reasonably drawn from it, support Judge Hodgson's finding that, prior to the interview, defendant had not formed any belief that he was in police custody. Rather, the testimony shows that defendant was alone and asleep when the police first arrived, and that the police had no contact with him until Sergeant Morgan and Detective Petrick entered his room to begin their interview. Although the police had seized his car while he was in his hospital room, defendant was not made aware of that fact. In addition, defendant had no reason to know that the police had issued a bulletin to locate his whereabouts, or that the police had conferred with the hospital's security personnel before the interview.

Police interviews conducted of a defendant in a hospital room are not necessarily custodial interrogations just because the defendant is confined to the hospital for medical reasons. For example, in State v. Zucconi, 50 N.J. 361 (1967), a State Trooper interviewed the defendant in his hospital room following an automobile accident. The defendant sought exclusion of his statements on the ground that he had not been given Miranda warnings. Id. at 363. The Court rejected that contention, observing that a hospital room is a "surrounding[] totally lacking the 'compelling atmosphere inherent in the process of in-custody interrogation'" and that the "circumstances of the interviews here could not possibly permit the use by the authorities of the techniques of persuasion described and condemned in Miranda." Id. at 364.

Defendant cites to O'Loughlin, supra, in which we suppressed statements made by a defendant during a police interrogation in her hospital room, and without Miranda warnings, because the defendant did not have an objectively reasonable belief that she was free to leave. O'Loughlin, supra, 270 N.J. Super. at 485. However, in O'Loughlin, although the defendant was not charged with a crime or physically restrained, she was told that she was under the "care" of police and that she must wait for police-arranged transportation, prompting her to ask officers if she was actually being placed under arrest. Id. at 484.

That is not the case here. The police did nothing, and defendant was told nothing, to lead him to believe that he was in police custody. Rather, defendant voluntarily admitted himself into Riverview, where police officers eventually found him. Any restrictions on his freedom of movement before police arrived were imposed by the hospital as the result of defendant's own voluntary attempt to get medical treatment.*fn3

Those hospital-imposed restrictions remained in effect after the police came to interview him.

We appreciate that defendant was not free to leave the hospital on his own volition, under the terms in which he had checked himself in as a patient in mental distress. However, the restraints on his movement were not created by law enforcement. There is no proof in the record that defendant thought the police were responsible for his continued confinement as a patient.

Defendant further argues that the manner and method by which the police officers questioned him created a reasonable belief that he was in police custody. In particular, defendant contends that he was "singled out" for a recorded statement in his hospital room. Defendant relies in this regard upon State v. O'Neill, 193 N.J. 148 (2007). There, police officers belatedly gave a defendant Miranda warnings over an hour after they had taken him into formal custody. Id. at 182. In that case, the Court suppressed defendant's post-warning statements because the warnings had been given too late. Id. at 182-84.

Judge Hodgson correctly distinguished O'Neill, noting that in the present case, "defendant was not in formal custody. The questioning only lasted for approximately 15 minutes and, once defendant made an incriminating statement, police exercised what was an abundance of caution and gave defendant his Miranda warnings." See also Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 1296, 84 L. Ed. 2d 222, 235 (1985) (noting that "the mere fact that a suspect has made an unwarned admission [to the police] does not warrant a presumption of compulsion").

In sum, according the deference that we owe to the trial judge's factual determinations, which he made after hearing the five witnesses at the suppression hearing, see State v. Locurto, 157 N.J. 463, 471-72 (1999), we sustain the court's determination that defendant was not in custody, and could not have reasonably believed that he was in police custody, at the time of his interview. Consequently, the incriminating statements that he made before the police administered Miranda warnings were admissible, and the trial court did not err in denying his motion to suppress them.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.