July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES OGLESBY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1765B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 24, 2011
Before Judges Carchman, Graves and Waugh.
Defendant, Charles Oglesby, a former Pleasantville police officer, appeals from an order denying his motion to suppress his statement to the police. The statement was taken as part of an investigation into the victim's allegations that defendant stole his jewelry and money. Defendant alleges that he did not knowingly and voluntarily waive his Miranda*fn1 rights because he believed he was the subject of an internal affairs investigation, and the court's failure to consider the prosecutors' violation of the Attorney General's guidelines for internal affairs interrogations was plain error. We affirm. These are the relevant facts.
On September 12, 2007, the victim, John Handy, filed a complaint with the Internal Affairs section of the Atlantic County Prosecutor's Office. The complaint alleged that on July 11, 2007, officers from the Pleasantville Police Department, including defendant, stole $15,000 in cash and $5000 worth of jewelry from Handy's car and person. Handy also alleged that the officers stole another $5000 from his home in Pleasantville during the execution of a search warrant.*fn2 In January 2008, the Pleasantville Police Department Internal Affairs Unit and the Atlantic County Prosecutor's Office Official Corruption Unit commenced an investigation. The investigation included recordings of telephone conversations, surveillance, interviews with witnesses and an interview with defendant.
After filing his complaint, Handy agreed to assist the prosecutor's office with its investigation of defendant by wearing a wire and contacting defendant regarding the jewelry. At various times in February 2008, Handy and defendant spoke by telephone or in person, and most of these conversations were recorded or observed by surveillance. At their initial encounter, defendant handed Handy a plastic evidence bag filled with jewelry. However, for the next few days, Handy still accused defendant of taking his money. Defendant then gave Handy $200 from his personal bank account so Handy would "leave [defendant] alone."
On March 3, 2008, defendant was scheduled to receive a promotion at a ceremony that evening. That morning, Sergeant Joseph Pepe, of the Atlantic County Prosecutor's Office, informed Captain Ruiz that investigators from the prosecutor's office wanted to interview defendant that afternoon. The Chief of the Pleasantville Police Department, Duane Comeaux, did not learn that defendant was the target of a criminal investigation until that day. Before learning of the investigation, the Chief had already planned to inspect defendant's gear before the promotion ceremony; the prosecutor's office knew of the Chief's plan and arranged to interview defendant after the inspection.
The decision to conduct the interview at the police department was based on officer safety concerns, the timing of the promotion ceremony and the fact that defendant would already be present at the station that day.
Defendant arrived at the station around 2:30 or 3:00 p.m. and went to the Chief's office to have his weapon inspected. The Chief performed the inspection, then placed defendant's gun belt and holster in another officer's office and asked defendant to follow him. The Chief told defendant, "the prosecutor's office wants to talk to you[.]" Defendant then entered the office where Sergeant Pepe and Investigator McManus were waiting, the Chief left and the door closed behind him, leaving defendant alone with Pepe and McManus. The following dialogue took place:
CO: Yeah I would like to know what it is about first.
JP: We have to do it, we have to tell you about it on tape.
CO: I know my rights. I'll sign.
JP: Plus she has to do it on tape.
HM: This is Investigator Heather McManus with the Atlantic County Prosecutor's Office. Currently located in Pleasantville PD. Present with me today is Sergeant Pepe and Detective Charles Oglesby. Charles, we just have to go through your Miranda with you, I know you know it. You have the right to remain silent and refuse to answer any questions, anything you say may be used against you in a court of law. You have the right to an attorney at any time and have him present before and during questioning. If you cannot afford an attorney one will be provided if you so desire prior to any questioning. You have the right to stop answering questions at any time and have an attorney present. Do you understand these rights?
HM: Okay. Right down here. Down here that's it, yeah.
HM: Okay. Alright the reason we're here is uh, we had a complaint in reference to a search warrant that was conducted um, in July at Ridgewood Avenue.
CO: John Handy.
CO:  I know all about it.
HM: Okay. Tell us what you know.
Defendant then admitted to having multiple conversations with Handy in the week before the interview. Defendant denied stealing money from Handy. He told investigators that he loaned Handy $200, because Handy needed the money to avoid eviction. After this interrogation, Pepe concluded that defendant was not telling the truth, and the following dialogue took place:
CO: This is what I know. He came here and said that we took his money and his jewelry and all that. I had his jewelry in evidence and I gave that back to him. He said we owed him money and I said look I don't have your money. . . .
JP: Um, I think I have a general flavor for the fact pattern um, I think that you gave us some glancing information covering all topics but from an investigative standpoint I believe that you have been less than truthful in some key areas.
CO: I  can take the polygraph.
JP: Okay, unfortunately I couldn't polygraph you . . . .
CO: I mean truthfully do you think I would risk my career over Johnny Handy and all I did was try and help him out. I can't see it I mean.
JP: Okay, um, I mean we're obviously investigating this whole situation um, it is an internal affairs matter, there's um, a host of allegations that covers different topics um, dealing with the search warrant dealing with you know how things were done, why things were done and everything that took place.
CO: I had.
JP: Right now um, we do not have a criminal complaint in hand um, if we did you would have been notified of that.
JP: So, we do not have any complaints in hand, we're only conducting an investigation . . . I do appreciate you talking about it um we read you your rights and you didn't have to talk to us but you chose to . .
CO: Okay. I'm sorry Sergeant but I worked to[o] hard in my career and . . . I thought he needed help that's all it is.
JP: Charles, the investigation has revealed otherwise and there's information that is contrary to what you[']r[e] saying right now and that's why we[']re at a crossroads here and we have to make legal decisions of where we go at this point in time we're not at liberty to discuss anything . . . .
JP: And this is where we're at right now and you did make mention that you know your job we do not have a complaint in hand I do not know the legal decision that's gonna take place after your statement because your statement will be evaluated you know in its entirety . . . .
When the digital recording ran out of space, Pepe switched
to a cassette tape. After changing the tape, defendant was
sworn in again. The following dialogue took place:
JP: Okay um, prior to starting this interview you were um, read your Miranda rights your aware of your rights.
JP: And um.
JP: You still wish to voluntarily waive them and talk to us?
CO: Yes. . . .
Defendant then admitted that paying Handy was not only about
helping him with rent. Handy had been accusing defendant and
the department of stealing his money, and although defendant
continued to deny stealing Handy's money, he paid Handy $200 so
Handy would "leave him alone."
Later, Pepe reminded defendant that he was there
voluntarily and informed him that the prosecutor's office would
be reviewing the tape to determine whether criminal charges
JP: Well Charles, you're here voluntarily. We want to talk to you, we want to get to the bottom of it. . . .
JP: Charles, you're he voluntarily, um, if you want to keep talking great if you don't want to continue talking it's totally up to you, that's really where we[']re at right now.
CO: Alright. . . .
JP:  Um whatever's gonna happen is gonna happen, Charles, but this is a part of the internal affairs investigation. What happens to you administratively from this point on is gonna be up to your department. What happens to you criminally is gonna be up to the prosecutors office for them to make legal decision[s], we give them the tape, we say here's the best we can figure out, you listen to it, you make sense of it, make the decision and they will make a decision. . . .
Toward the end of the questioning session, defendant stated:
I, I, I think somebody was a total set up for me. For me, for the chief to call me in here and say I'm gonna inspect your gun though and give me your gun and come in here and this and then you ask me all these questions was a . . . total set up I, I truly, truly don't understand why I was treated like that but if this is how the Atlantic County Prosecutor's Office do, do to us I don't understand it, I mean I would personally if I was called into the office said Charles you know, sit down because we got to talk to you about this but I have my family here from Maryland and everything and I feel like I'm totally under stress and I'm just, I can't believe this.
I think I'm done. I think like I, I only wanted to take a polygraph just to show that I'm not a thief. I didn't take no money, I didn't take nobodies jewelry. I gave the money just to help this guy out you know, because we've known each other our entire lives that's the bottom of it, the middle of it and all that I'm sorry if it's messed upAt the conclusion of the questioning, Pepe asked defendant to confirm he told the truth, was there voluntarily and was read his rights. Defendant, for the first time, denied that his participation was voluntary.
JP: Okay. You were here voluntarily we read you your rights?
CO: I was not here voluntarily.
JP: Well, we read you your rights?
CO: I was ordered here. I was ordered here for them to check my gun though.
HM: But you realize that you didn't have to come in and talk to us. You realize that you didn't have to talk to us?
CO: I could of turned around and walked out.
HM: Yes. Miranda you signed the Miranda card.
Following the interview, McManus told the Chief that some of defendant's statements were inconsistent with other statements gathered during the investigation. The Chief placed defendant on administrative suspension with pay and informed defendant that he would not receive the promotion that evening. In July 2008, an Atlantic County Grand Jury returned Indictment No. 08-07-1765, charging defendant with: second degree official misconduct, N.J.S.A. 2C:30-2(a) (Count One); third-degree theft by failure to make required disposition, N.J.S.A. 2C:20-9 (Count Two); second-degree official misconduct, N.J.S.A. 2C:30-2(a) (Count Three); and third-degree tampering with public records, N.J.S.A. 2C:28-7 (Count Four). Defendant pled not guilty to these charges.
In November 2008, defendant filed a motion to exclude and suppress his statement. Following four days of testimony, Judge Isman denied the motion on September 25, 2009, explaining:
I reviewed carefully the testimony of each and every witness who testified in this proceeding, and, of course, evaluated their credibility, but the fact[s] that I kept coming back to inescapably, were as follows: A twelve-year police veteran, about to be elevated to the rank of sergeant, certainly an intelligent gentleman who was able to be successful as a police officer and able to be successful to the extent that he was about to be elevated to the rank of sergeant - And that's a big deal in law enforcement circumstances, and you normally don't get those positions unless you earn them. This was done not by investigators of Pleasantville internal affairs. . . . . He was not interviewed as Lacaillade was interviewed by a superior officer. Detective Oglesby was interviewed by two representatives of the Prosecutor's Office. Any police officer knows that prosecutors' investigators don't investigate whether I wore the wrong uniform, don't investigate if I had the wrong gun, don't investigate if I came in late, don't investigate ordinary matters of the department that might involve discipline. They investigate crimes. In fact, they're the chief law enforcement officer in the county. It was done with the two of them and the two of them only, Investigator McManus and Sergeant Pepe. Prior to the questioning commencing, Captain Ruiz left the room, Chief Comeaux had left the room. And most importantly and significantly, even though those magical words, look, Charles, understand this is a criminal investigation, not simply an administrative investigation. The first thing that's made clear to him is that he has been - being given his Miranda rights, and I don't know that there's a police officer alive who could honestly say that he or she doesn't understand that when someone is given a Miranda warning, they are a suspect, they are a target of the investigation, it is a criminal investigation . . . . For the same reason that I don't think a private citizen under these circumstances would have a logical explanation to me why this statement was not voluntary, so, too, must I find beyond a reasonable doubt that under all the facts and circumstances, even with the issues going on involving the gun, the belt, the promotional ceremony later that night, this was a voluntary statement from a knowing, intelligent police officer, who felt he was clearly not giving a confession, not conceding any point, but who felt he was giving an outright denial, and basically a challenge . . ., and therefore, I must respectfully deny the application to determine that this statement given by Detective Oglesby is inadmissible, and I do find beyond a reasonable doubt that even with all the facts and circumstances surrounding, that it was voluntary and, therefore, would be admissible at any trial in this matter.
Thereafter, defendant pled guilty, pursuant to a negotiated plea agreement, to one amended count of obstruction of justice, a disorderly person's offense, N.J.S.A. 2C:29-1 (amended Count One). Defendant was sentenced to one year of probation with forfeiture of his current employment as a Pleasantville police officer, pursuant to N.J.S.A. 2C:51-2. Defendant reserved the right to appeal the denial of his motion to suppress his statement, and this appeal followed.
The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.
An appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. In those circumstances solely should an appellate court appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.
[State v. Elders, 192 N.J. 224, 243-44 (2007) (internal citations and quotations omitted).]
Our review of a judge's legal conclusions, however, is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), aff'd, ____ N.J. ____ (2011).
Defendant argues that despite having been read his Miranda rights, he was compelled to answer the investigators' questions. He contends that he was bound to speak because the rules and regulations of the police department require that he answer questions in internal investigations,*fn3 and he asserts that he believed that this was an internal affairs investigation. More specifically, defendant contends that the prosecutors' repeated characterization of the investigation as an "internal affairs investigation" as opposed to a "criminal investigation" was "deception" and caused him to believe that he was "dutybound" to answer or "risk termination." Defendant also argues that the Chief's request that he have his weapon inspected on the day of his promotion was a pretext "orchestrated for the purpose of deceiving and compelling Oglesby's self- incrimination."
The State asserts that defendant "voluntarily waived his right to remain silent" and that his "knowing and intelligent waiver remained effective throughout the interview regardless of how and for what reason he arrived to the police station." Furthermore, the State explains that an "internal affairs investigations" can be either administrative or criminal in nature, and "neither investigator made any statement that could lead defendant to believe that he was the subject of an administrative proceeding."
In Miranda, supra, the United States Supreme Court imposed safeguards to ensure an individual's right against self- incrimination when subject to custodial interrogation. 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. To protect such rights, the Court mandated that a person subject to a custodial interrogation "must be adequately and effectively apprised of his [Miranda] rights." Id. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719.
Specifically, the subject of a custodial interrogation must be advised of the following rights:
1. You have the right to remain silent.
2. Anything you say can be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
5. You have the right to stop answering questions or giving a statement anytime you wish and do not have to give a reason. You also have the right to demand a lawyer during the giving of a statement or the answering of questions and may stop until he arrives. If you cannot afford a lawyer, one will be appointed to represent you.
[Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07]. A suspect may waive his Miranda rights and choose to speak to the police. State v. Nyhammer, 197 N.J. 383, 402, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). A defendant's statements to the police are admissible if the State proves, beyond a reasonable doubt, that the defendant's waiver of the right against self-incrimination was knowing, voluntary and intelligent. State v. Yohnson, 204 N.J. 43, 59 (2010) (citing State v. Presha, 163 N.J. 304, 313 (2000)). To determine whether a waiver is voluntary, a court should assess the totality of the circumstances, including factors such as "the suspect's age, education, and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Presha, supra, 163 N.J. at 313 (citations and quotations omitted). A court should also consider the defendant's familiarity and previous encounters with the law. Ibid.
Police officers have the same right to remain silent as other criminal suspects. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562, 567 (1967). However, "[t]he public employee's constitutional right not to incriminate himself . . . inevitably collides with the need of the public employer, in the public interest and as a matter of the public trust, to require him to account for his conduct in public office." Banca v. Town of Phillipsburg, 181 N.J. Super. 109, 113 (App. Div. 1981).
That conflict has been resolved by the United States Supreme Court in an evolutionary series of decisions which developed the constitutional doctrine that a public employee is not subject to disciplinary sanction solely by reason of his exercise of his privilege against self-incrimination during the course of official interrogation unless he has first been accorded the protection of use immunity barring admission in a subsequent criminal proceeding of any self-incriminatingstatement he may make. The conceptual basis of the doctrine is the recognition that when a public employee makes a self-incriminatory statement in response to a threat of discharge, that statement must necessarily be regarded as coerced and, therefore, as secured in violation of the employee's constitutional privilege not to incriminate himself. If, however, he is protected from the normal consequences of a self-incriminatory statement, that is, if the statement may not be used against him in a subsequent criminal proceeding,*fn4 then the choice he must make between loss of his employment and the giving of the statement, however much of a Hobson's choice it may be, does not offend his constitutional privilege. [Ibid.]
New Jersey responded to this conflict by adopting N.J.S.A. 2A:81-17.2a2, which states:
If any public employee, having claimed the privilege against self incrimination, testifies before any court, grand jury or the State Commission of Investigation after having been informed that his failure to appear and testify would subject him to removal from his office, position or employment, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury or false swearing committed while so testifying.
The statute does not include "interrogations," but in Banca, supra, 181 N.J. Super. at 114, we held that the same constitutional concerns apply to interrogations such as this one.
When a public official asserts that he was compelled to testify as a result of his public duty, "[f]ear that loss of employment will result from the exercise of the constitutional right to remain silent must be subjectively real and objectively reasonable." State v. Lacaillade, 266 N.J. Super. 522, 528 (App. Div. 1993) (citation omitted). "First, the defendant must have subjectively believed that he was compelled to give a statement upon threat of loss of job. Second, this belief must have been objectively reasonable at the time the statement was made." Ibid. (quotation omitted).
The trial judge's determination that, under the totality of the circumstances, defendant knowingly and voluntarily waived his Miranda rights is supported by the credible evidence in the record.
First, defendant was read his Miranda rights. Before the prosecutors started reading the rights, defendant said "I know my rights. I'll sign." Then, they insisted on reading the full and complete rights. Defendant again responded that he understood. When the tape was changed midway through the interrogation, defendant again that he was read his rights and "still wish[ed] to voluntarily waive them and talk . . . ."
Defendant is an experienced police officer, and he understands the meaning of Miranda, as well as the consequences of waiving those rights. He knew that Miranda warnings would not have been issued in an administrative investigation - they would only be delivered in the criminal context. Our Supreme Court has explained that "the failure to be told of one's suspect status still would be only one of many factors to be considered in the totality of the circumstances." Nyhammer, supra, 197 N.J. at 407. This is due, in part, to the fact that "the Miranda warnings themselves strongly suggest, if not scream out, that a person is a suspect[.]" Ibid.
Furthermore, the context of the questioning is relevant. Defendant was called to the station by the Chief, but then he was stripped of his weapon and questioned in a room with only two investigators from the prosecutor's office. No members of the police department staff were present. According to Captain Ruiz, "it's generally known within police departments that when the prosecutor's office shows up and wants to talk to you, it's not administrative in nature . . . it's a criminal investigation[.]" We conclude that in this context, there is substantial credible evidence to support the trial judge's determination that defendant knew, based on his experience and the circumstances surrounding the interrogation, that this was a criminal investigation.
Finally, defendant was informed that the investigation may have criminal consequences. The prosecutors repeatedly informed defendant that they did not yet have a criminal complaint in hand. This implied that although they did not have one, it was possible that one would be filed. Furthermore, Pepe explicitly told defendant "[w]hat happens to you criminally is going to be up to the prosecutors office for them to make legal decision[s.]" Defendant was aware of the potential criminal consequences of this investigation.
Defendant also asserts that the prosecutors did not comply with the Attorney General's "Internal Affairs Policy & Procedures,"*fn5 (Guidelines) and that the trial judge committed plain error in not considering those Guidelines. While we agree that the prosecutors did not, and should have, adhered to the Guidelines, the trial Court's consideration of the Guidelines would not have changed the result, and we find no plain error.
The Attorney General has issued the Guidelines to "assist the State's law enforcement agencies with the receipt, investigation and resolution of citizen complaints of police misconduct." AG Guidelines 11-4. As interviews with officers are often critical to resolving an internal affairs investigation, the Guidelines provide instructions on conducting these interviews. Id. at 11-36.
The Guidelines provide that during a criminal investigation, an investigator should "utilize the same procedures and apply the same legal principles to the subject officer as he or she would to any other target or suspect in a criminal investigation," which includes Miranda warnings. Id. at 11-36; 11-39. An internal affairs investigator should defer to the county prosecutor's supervision when interviewing subject officers in criminal investigations. Id. at 11-36.
The Guidelines also suggest that For the internal affairs investigator, it is critical to distinguish between those investigations involving potential criminal conduct and those investigations limited to administrative disciplinary infractions. In addition, the investigator must be able to identify and apply the appropriate procedures to be utilized during the interview process in either a criminal investigation or an administrative investigation. The failure of an investigator to identify and apply the appropriate procedures can compromise and render inadmissible evidence gathered during the interview process in a criminal investigation or needlessly complicate the interview process during an administrative investigation . . . .
The Guidelines state that the manner in which the mandates are implemented is a "decision that is left to discretion of individual law enforcement agencies." Id. at 11-5. The manual suggests a number of ways to alleviate the confusion between criminal investigations and administrative investigations, but none of them are described as mandatory.
Here, the investigators failed to differentiate between a "criminal" and an "administrative" investigation. They never stated that this investigation was criminal, however they did indicate that the prosecutor's office would review the tapes and decide whether to issue a criminal complaint. They also never characterized the investigation as "administrative." They told him that it was "internal," which encompasses both administrative and criminal. As the trial judge explained, ideally, they would have explicitly informed defendant that he was the subject of a criminal investigation, as suggested by the manual, but under the totality of the circumstances defendant knew this was a criminal investigation.