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State of New Jersey v. Carl Hreha

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 10, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARL HREHA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1125.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2011

Before Judges Lihotz, Waugh, and St. John.

Defendant Carl Hreha appeals from his conviction for second-degree computer criminal activity, in violation of N.J.S.A. 2C:20-25(b), and fourth-degree bias intimidation, in violation of N.J.S.A. 2C:16-1. We reverse.

I.

We discern the following facts and procedural history from the record on appeal.

Hreha was employed by the Office of the Attorney General (OAG)*fn1 from 2003 to 2006. He worked as a technician in the field-support and help-desk section of OAG's Information Technology department (IT). His position involved a variety of computer-related duties, including resolving hardware and software problems for OAG computer users at the Richard J. Hughes Justice Complex in Trenton. Hreha was typically assigned to solve problems with printers.

On September 11, 2006, almost every printer in the OAG computer network at the Justice Complex started continuously printing a document consisting of a confederate flag with the following message: "kill all browns out of our country, die sand niggers." Kiran Patel, one of OAG's IT security managers and Hreha's supervisor, immediately notified his superior, Maria Cardiellos, and began efforts to stop the printing, collect all of the documents, and ascertain the source of the printer order.

According to Hreha, when he returned from lunch, Patel asked for his assistance. Patel testified that Hreha did not initially assist in collecting the documents. He also noticed that Hreha and another member of the IT staff were "giggling" and "giddy."

According to Patel, two print orders caused the continuous printing of the document. The first occurred at lunch time, and the second occurred later in the afternoon. IT staff eventually succeeded in stopping the printers, albeit with considerable difficulty. Patel estimated that 2000 copies of the document had been printed.

Patel and a consultant reviewed the logging devices for the OAG network and determined that the print orders had come from a single IP address within the network. Patel described an IP address as similar to a telephone number, and explained that computers need a unique IP address to communicate with other computers and printers over the network. Patel also determined that the print orders had been sent from a computer terminal located on one of the four floors of the Justice Complex on which the IT department had employees.

Based on his review of the IP addresses in the log, Patel concluded that the IP address involved was a valid address within the OAG network, but that it did not match any device in the building. Patel also discovered a related MAC address, which he analogized to the VIN number of a car because it displays the make, model, and serial number of the network card associated with the device. Upon further investigation, however, Patel discovered that the MAC address was "phony," in that it had been altered and did not actually belong to any device in the IT department.

After September 11, Patel continued to inspect the equipment on the network and review network logs. He eventually ruled out a virus or worm as the source of the print orders.

The incident was subsequently reported to the Division of Criminal Justice and the State Police. Hard drives from two OAG computers were sent to the State Police laboratory for analysis. On September 18, Patel provided Sergeant David Dias of the State Police with information regarding the IP and phony MAC addresses.

Patel also identified Hreha and the other employee with whom he had been "giggling" on September 11 as suspects. He told Dias that the other employee had previously been caught using hacker websites. As part of his investigation, Patel obtained records of Hreha's emails.

On October 13, 2006, Patel informed Hreha that there would be an IT meeting to discuss "general customer service issues" and a change in the pay cycle. After the meeting, Patel told Hreha that a representative of the State Police wanted to speak to him. He and the other IT employees left the conference room, and Hreha stayed behind. Dias, who was not in uniform, entered, closed the door, and informed Hreha that he had a few questions for him.

Dias asked Hreha whether he knew why he was there. Hreha responded that he believed it was about a discrimination complaint he filed against Cardiellos, whom he described as his "main boss." That complaint, which he had filed in late August 2006, alleged that Hreha had been discriminated against on the basis of his age, race, and gender. The complaint was still pending at the time Dias approached Hreha. Dias responded that he was not there to talk about the discrimination complaint.

Dias asked Hreha to read and sign a Miranda*fn2 card. Dias testified that he read the Miranda card to Hreha verbatim, and then asked him to look it over and sign it. Hreha, however, testified that Dias did not read the card to him and that he signed it without having read it. The card did not contain a statement waiving Miranda rights.

At some point, Detective Sergeant Stanley Field, Detective Charles Allen, both of the State Police, and Detective Kevin Zebro of the New Brunswick Police joined Hreha and Dias in the conference room. According to Hreha, because Field and Allen did not identify themselves as police officers, he thought they were in an IT position higher than his own.

Dias then started asking Hreha specific questions about the September 11 incident, although Hreha testified that the police officers eventually took turns asking questions. By that time, according to Hreha, he believed he was not free to leave. With Dias sitting on his right and the three others sitting across from him, Hreha "felt cornered." He felt their tone had become "a little more aggressive" and that they were "adamant on getting more answers out of [him] than [he] really felt that [he] knew."

Hreha initially denied any involvement in creating the document or sending the printing orders. He told Dias he thought the incident was an attempt to make Cardiellos or the IT department look bad. According to Dias, Hreha stated he was "happy about it" if the incident made Cardiellos "look bad." He thought the incident was funny until he saw how it made Patel feel.

After further questioning, Hreha admitted to composing the document and sending it to the printers from his OAG desktop computer. According to Hreha, he was escorted out of the Justice Complex to Dias's patrol car, at which time he was handcuffed and taken to Dias's office in a nearby building.

After Hreha was fingerprinted and photographed, he agreed to give an audiotaped statement, which began at 3:27 p.m. Field, Dias, and Zebro were present. Field advised Hreha of his Miranda rights at the beginning of the audiotaped statement. Hreha acknowledged that he understood his rights, and responded "no" when asked by Field whether he had "been coerced or threatened or intimidated at any point" during the day. However, Field did not ask Hreha whether any promises had been made to him.

After obtaining some basic personal information, Field asked Hreha to "shed some light" on the September 11 incident. Hreha responded as follows:

Hreha: . . . I was involved in a print job or many print jobs of ah, papers that were printed on the printer or many printers throughout our office and it caused a lot of people ah, some headaches and ah, personal disruptions during the course of ah, 9/11 of 2006.

[Field]: Can you go into, the best you can remember specifics and details as to of how that happened, how it, how it occurred, what, what, how did you specifically do it. Hreha: Um, I took a document that was ah, given to me and it had racial content. I then forwarded that document to multiple printers on the computer and um, when I [came] back from lunch I ah, started all the print jobs so that um all the printers would have multiple papers coming out of 'em. Ah, it was, it was an incident that ah, ah, really couldn't be stopped unless they came to me. Um, it was several jobs at each printer, so it was nothing that ah, you could (inaudible) except turning the printer off and if you turn it back on it would keep on printing the same exact page, ya know hundreds of times, that's all, the printer was just turned off completely.

When asked how he masked the MAC address, Hreha explained that he used a program that prevents anyone from tracing his address.

When asked what his intention was in sending the document, Hreha responded: "My main intention was to create some grief upon my ah, immediate boss, ah Maria Cardiellos . . . ." He replied "no" when asked whether anybody was involved or conspired with him.

Field then asked Hreha to sign a Miranda card:

[Field]: Okay. Um, real fast if you could I'd like you to just sign this, this Miranda card, ah, once more, um we'll get ya a pen, um that was just what we said before and again I'll ask ya, ah, at any point were you threatened or coerced into um speaking to us in providing this taped statement.

Hreha: No I was not.

Hreha's signature on the back of the Miranda card at the end of the interview was witnessed by Dias. That card also did not contain a written Miranda waiver. The interview was concluded at 3:35 p.m., eight minutes after it started. Although they had charged Hreha with a second-degree offense, Dias drove Hreha back to the Justice Complex, where he was released on his own recognizance.

Hreha was indicted on October 19, 2007. He moved to suppress his statements to the State Police. A Miranda hearing was held on December 23, 2009, at which Dias and Hreha testified. The audiotape was played at the hearing and a transcript was introduced into evidence. After receiving post-hearing letter briefs, the judge issued a written opinion and entered an order denying the motion on March 5, 2010.

Hreha was tried before a jury on April 14, 15, 16 and 19, 2010. The jury found him guilty on both counts. Hreha moved for a judgment of acquittal following the verdict. The motion was argued on August 2, 2010, after which the judge reserved decision. He entered a written opinion denying the motion on August 5, 2010. An implementing order was entered the same day.

On August 6, 2010, Hreha was sentenced to a five-year term of imprisonment on count one, with one year and eight months of parole ineligibility. He was sentenced to one year on count two, to run concurrent to the sentence on count one. After sentencing, defendant moved for bail pending appeal, which was denied.

This appeal followed. We denied Hreha's application for bail pending appeal.

II.

Hreha raises the following issues on appeal:

POINT ONE: BOTH CONVICTIONS SHOULD BE VACATED BECAUSE THE COURT BELOW ERRONEOUSLY REFUSED TO SUPPRESS HREHA'S CONFESSION, WHICH (1) VIOLATED MIRANDA BECAUSE THE STATE CONTINUED TO INTERROGATE HIM WITHOUT GIVING HIM FRESH MIRANDA WARNINGS AFTER REFUSING HIS REQUESTS TO SPEAK WITH HIS FATHER AND LEAVE THE ROOM, AND/OR (2) WAS INVOLUNTARY BECAUSE IT RESULTED DIRECTLY FROM THE STATE'S PROMISES OF LENIENCY, INCLUDING FALSE PROMISES HE WOULD RECEIVE PTI AND KEEP HIS JOB.

POINT TWO: THE COMPUTER THEFT CONVICTION SHOULD BE REVERSED, AND A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED, BECAUSE NO EVIDENCE ESTABLISHED THAT HREHA, IN ALLEGEDLY SENDING THE PRINT JOB, (1) EITHER "ALTERED" THE [OAG'S] "COMPUTER NETWORK" OR "DISRUPTED" OR "IMPAIRED" ITS "COMPUTER SERVICES," AND/OR (2) DID SO "WITHOUT AUTHORIZATION."

POINT THREE: THE COMPUTER THEFT CONVICTION SHOULD BE VACATED BECAUSE THE COURT BELOW ERRONEOUSLY INSTRUCTED THE JURY THAT THE "WITHOUT AUTHORIZATION" ELEMENT APPLIED ONLY TO THE "ALTERING" ELEMENT, NOT TO THE "DISRUPTING" ELEMENT.

We begin our analysis with Hreha's contention that the motion judge erred in refusing to suppress the statements he made to the State Police on October 13, 2006.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial court's fact-finding 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." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause");

State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

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." Johnson, supra, 42 N.J. at 161. 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. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. 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." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]

However, our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). We generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," Locurto, supra, 157 N.J. at 471, nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997).

Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

On appeal, Hreha argues that the trial judge erred in denying his motion to suppress for two reasons, only one of which was actually raised on the motion to suppress in the Law Division. Hreha's motion was premised on his argument that his confession was not voluntary, primarily because he relied on promises of leniency made by the police during his first interrogation. The trial judge rejected that argument, which is renewed before us in this appeal. Hreha now also argues that his confession must be suppressed because his request to speak to his father should have been construed as an assertion of his right to remain silent, requiring the police to re-administer the Miranda rights before questioning him again. That argument was not considered by the trial judge because it was not made to him.*fn3

A.

At the Miranda hearing, Hreha gave the following testimony on direct examination:

Q. Did you ever have . . . any discussions with them . . . about you getting arrested and what would happen?

A. Yeah, they told me if I admitted what I did and explained to them how I did it, then they would try to offer me . . . like an easy sentence so to speak. They kind of led me to believe that was the easy way out.

Q. And when you say an easy sentence, was there any particular description of anything that somebody told you about what would happen to you?

A. Well, eventually they made me an offer that if I took a PTI sentence that they said, in other words, it's kind of like a slap on the wrist, and I'll be back at work in less than a week. And after a year I won't have a record . . . .

Q. And . . . are you familiar with what PTI was when you heard that?

A. No, I was not.

Q. And had you ever been charged with any criminal offense before?

A. No.

Q. Had you ever been arrested before?

A. No.

Q. Do you recall which of the officers described what PTI is and made this . . . offer to you?

A. Sergeant Dias originally spoke about it. I believe eventually all of them kind of made discussion about it as well.

Q. And . . . did they talk to you at all about any manners in which you may be processed at the time?

A. They told me that, you know, we can do this the hard way or I can give them the information they want, and they'll try to work with me. And at least that way I cannot walk out of the building with handcuffs. And I would rather have done that, so that's the option I chose.

Q. Did they tell you anything else other than walking out of the building in handcuffs as far as what would happen to you in the short term?

A. Well, they said normally the process, it takes two, two or three days which I think it was Thursday and Friday, so I definitely didn't want to be in jail for the weekend.

Q. Did you have anything going on in particular that weekend that was a concern to you?

A. Yes, I had a landscape job we were finishing up that had to be completed by Saturday afternoon.

Q. And was it a significant job?

A. Yeah.

Q. That you were working on?

A. It was probably . . . about 15 percent of my pay for the year from my State position, so it was significant to me at least.

Q. Carl, what was the reason that you decided to make the statements that you did that day?

A. Well, my top priority was that I wouldn't go to jail for the weekend. I wanted to make sure that I can finish my other priorities for my own business and that was a much easier way to accomplish what I had already planned.

Q. And how was it that you knew you could accomplish that?

A. They told me at the interrogation, they told me kind of, you know, . . . if I agree to what they're telling me, and that . . . I explained to them how the print job started, you know, it would be a lot easier for me and they wouldn't have to lock me up for the weekend.

On cross-examination, he testified as follows:

Q. But when you were asked later on if you felt threatened or intimidated, you said you did not twice on the audiotape statement that was played for the court?

A. No, that's correct. . . . [A]ll the way at the end from my audiotape, I felt that they required me to say certain things so that I can go home like they promised or else, you know, they were going to keep me there.

Q. So, basically, what you're telling us now is that you confessed to a crime so you could go home and finish a landscaping job?

A. That's correct.

Dias was asked during cross-examination at the Miranda hearing whether any promises had been made to Hreha to the effect that he would get PTI if he confessed and also if Hreha was told that he would not be walked out of the building in handcuffs and jailed for a few days pending setting of bail if he confessed. He did not specifically deny that such promises were made, nor did he state his belief that they were not. Instead, Dias testified to a lack of recollection.

Q. Do you remember any of the officers indicating to Mr. Hreha what possibly could happen to him if he was arrested, that he could be handcuffed and brought out of the building that way?

A. I don't remember.

Q. Do you recall if any of the officers indicated that you did have options, as you told us, you certainly could arrest him and handcuff him, but you could also in exercise of discretion, walk him out and handcuff him outside?

A. I don't remember.

Q. Do you remember indicating that or hearing anyone indicate to Mr. Hreha, that if he were arrested it would be likely that he'd be locked up somewhere until Monday?

A. I don't remember that either, counselor.

Q. [Was] there any discussion of what potentially could happen to Mr. Hreha as a result of being convicted of this offense? Let me clarify that a little bit. Amongst the officers and Mr. Hreha in that conference room?

A. I don't remember.

Q. Do you know if any of the officers, yourself included, discussed PTI or pretrial intervention with him as a possibility?

A. I don't remember.

Q. So if someone did, one of the other troopers, you wouldn't be able to tell us because you simply don't remember, correct?

A. Not based on the time frame what's in my report, I would not be able to recollect.

In his written opinion denying the motion to suppress, the trial judge found that the general characteristics of the initial interrogation, such as time of day, location, and number of people present, were not themselves coercive. That finding is factually supported in the record.

However, the judge mistakenly asserted that Dias denied that anything was said to Hreha about PTI or not embarrassing him by taking him out of the building in handcuffs. In fact, as quoted in length above, Dias had only testified that he "would not be able to recollect" whether such promises were made. In addition, Dias acknowledged that it was possible that Hreha was not in handcuffs when he was escorted out of the Justice Complex, because it would not "have been out of the ordinary to bring him down . . . and then cuff him at the trooper car so we wouldn't be parading him through his place of employment." The record also reflects that Hreha was released on October 13, after he was processed by the State Police, rather than being incarcerated pending the setting of bail.

The judge further relied on the fact that there were "no discussions about any promise of PTI during the [recorded] statement." Although that is accurate, Hreha's recorded statement consisted of his responses to the questions he was asked by Fields, who never asked Hreha whether any promises had been made prior to his giving the statement. Fields only asked whether Hreha had been "coerced or threatened or intimidated at any point."

With respect to the issue of credibility, the judge found as follows:

[Hreha] testified on cross-examination that he confessed to printing the thousands of copies of a racist flyer from his computer because he understood he would be released from custody that Friday afternoon so he could finish a large landscaping job scheduled for that weekend. The Court finds [Hehra's] testimony not credible. Namely, that he was confessing to tampering with his employer, the Attorney General's Office, computer network and engaging in bias intimidation so he would be released and could earn extra money in his self-employed landscaping venture. On the other hand, the Court finds Detective Sergeant Dias a credible witness in that he testified in a straightforward manner on direct and conceded certain points on his cross-examination.

While the judge correctly characterized Hreha's testimony in response to the prosecutor's questions on cross-examination, he neither referred to nor analyzed Hreha's testimony on direct that he had been "offered" PTI if he cooperated. That assertion, as we have already noted, was not actually denied by Dias, despite the judge's belief to the contrary.

"Promises made by law enforcement are . . . relevant [to a determination of voluntariness]: where a promise is likely to 'strip[] defendant of his capacity for self-determination' and actually induce the incriminating statement, it is not voluntary." State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div. 2005) (quoting State v. Pillar, 359 N.J. Super. 249, 272-73 (App. Div.), certif. denied, 177 N.J. 572 (2003)) (internal quotation marks omitted).

The trial judge did not discuss Pillar in the context of Hreha's argument that his Miranda waiver was not voluntary because he was promised PTI and other favorable treatment. Instead, the judge cited State v. Cooper, 151 N.J. 326, 353-56 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000), for the proposition that "officers are permitted to use deception and misrepresentation to secure confessions." The Supreme Court's holding in Cooper was actually much more nuanced than stated by the trial judge. The Court held that "a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession." Id. at 355 (emphasis added) (citing People v. Benson, 802 P.2d 330, 344-45 (Cal. 1990)).

Although confessions based upon promises of leniency were once considered per se inadmissible, courts now look to the totality of the circumstances in that regard. Pillar, supra, 359 N.J. Super. at 268-71; see also State v. Watford, 261 N.J. Super. 151, 160-65 (App. Div. 1992) (Havey, J.A.D., concurring). Factors to be considered include the nature of the promise, the context of the promise, the defendant's characteristics, whether Miranda warnings were administered, and whether counsel was present. Pillar, supra, 359 N.J. Super. at 271 (quoting United States v. Pinto, 671 F. Supp. 41, 57 (D. Me. 1987)). This list of factors is non-exclusive. Ibid.

The issue before us then is whether, when viewed in the totality of the circumstances, Pillar, supra, 359 N.J. Super. at 268-71, and using a beyond-a-reasonable-doubt standard of proof, Patton, supra, 362 N.J. Super. at 42, the facts in the record of the Miranda hearing support the judge's overall conclusion that Hreha voluntarily waived his Miranda rights. If the judge's findings are supported by sufficient, substantial, credible evidence in the record, they should not be disturbed. Locurto, supra, 157 N.J. at 472; State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). However, the ultimate question of voluntariness is a legal question requiring an independent appellate determination. Pillar, supra, 359 N.J. Super. at 268-69 (citing Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405, 411 (1985)); Watford, supra, 261 N.J. Super. at 162 (Havey, J.A.D., concurring).

Based upon our review of the record in light of the applicable law, particularly the requirement that the State prove a waiver of Miranda rights beyond a reasonable doubt, we have concluded that the judge's factual findings are not supported by sufficient, substantial, credible evidence in the record.

The judge was wrong in finding that Dias denied that any promises were made concerning PTI or how Hreha would be treated if he cooperated. As noted, Dias not only did not make such a denial, he did not even testify that he thought no such promises had been made. His testimony was basically that he "would not be able to recollect" whether such promises were or were not made. In addition, the judge mischaracterized Hreha's testimony to the extent he quoted only Hreha's exchange with the prosecutor on cross-examination about confessing "only" to avoid embarrassment and spending the weekend in jail, without addressing his testimony on direct that he was promised PTI. That the confession was induced by promises of PTI and favorable treatment after arrest is a significantly more plausible proposition than the truncated assertion that the confession was induced solely by a desire to avoid embarrassment, a weekend in jail, and loss of a money-making opportunity.

The judge was required to make his decision based upon the totality of the circumstances. We are convinced that the two factors outlined in the preceding paragraph, taken together, undercut the judge's finding of the witness's relative credibility on the central issue of whether promises were made to Hreha. Indeed, the "certain points" the judge described as having been conceded by Dias during cross-examination were, as far as we can determine, that he could not recollect whether Hreha was promised PTI or favorable treatment and that Hreha might well not have been handcuffed when he was escorted out of the Justice Complex. Those concessions do not really support Dias's credibility with respect to the central issue of Hreha's contention.

The judge also failed to consider the facts that, after he confessed, Hreha was released on the same day without posting bail on a second-degree offense and likely was escorted out of the Justice Complex without handcuffs, as he claimed was promised if he confessed. Those events were consistent with Hreha's assertion. In addition, the judge placed too much reliance on the lack of discussion of PTI in the recorded statement in light of the fact that Fields never asked him if any promises were made to him.

Applying the actual testimony given at the hearing, and discounting the judge's credibility findings for the reasons stated, we conclude that the State did not prove beyond a reasonable doubt that Hreha voluntarily waived his Miranda rights. Consequently, the motion should have been granted.

B.

We address the second Miranda issue briefly, noting again that it was not actually raised in the Law Division and is not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009).

At the Miranda hearing, Hreha testified on cross-examination that, during the first interrogation, he asked to speak to his father, a former state trooper, because "[his] father knows everybody," adding that he did not "really think [his father] could have helped [him] in the situation." He further testified that the officers refused because his father was "not involved" in the matter.

Although he did not raise the legal issue at the Miranda hearing or in his post-hearing brief, Hreha now argues that the police violated his Miranda rights by continuing to interrogate him "without giving him fresh Miranda warnings after refusing his requests to speak with his father and leave the room."*fn4

If an accused invokes his right to consult with an attorney or to remain silent "in any manner and at any stage of the process," all questioning must cease, Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707, and the right to remain silent 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, 325-36, 46 L. Ed. 2d 313, 320-21 (1975)). A custodial interrogation may be resumed after the invocation of the right to remain silent only if a new set of warnings is administered. Ibid.; see also State v. Hartley, 103 N.J. 252, 267 (1986) (stating the requirement that fresh Miranda warnings are administered is "indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect").

"Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination." State v. Bey, 112 N.J. 123, 136 (1988). However, interrogating officers "are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." Id. at 136-37.

Thus, "the police may continue their questioning so long as the person's words or conduct could not reasonably be viewed as invoking the right to remain silent." State v. Burno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008) (citing Bey, supra, 112 N.J. at 136-38). If, however, the police are "reasonably uncertain whether the person is asserting the right to remain silent, they may only ask questions directed to resolving that uncertainty." Ibid. (citing Johnson, supra, 120 N.J. at 283); see also State v. Alston, 204 N.J. 614, 623 (2011) (stating police are permitted to ask questions "designed to clarify" a suspect's ambiguous words).

A defendant's request to speak with a family member has been held to constitute an invocation of the right to remain silent or an ambiguous assertion warranting clarification. Hreha argues that his request to speak with his father "effectively invoked his right to remain silent." He relies on State v. Harvey, 121 N.J. 407 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991).

In Harvey, the defendant was arrested as a murder suspect and given Miranda warnings five times over the course of three days. Id. at 415-16. Following the fifth administration, defendant told the officers he would tell them about the murder after he had a chance to speak with his father. Id. at 417. After defendant was given the opportunity to speak with his father, the officers resumed the interrogation, without administering fresh Miranda warnings, and defendant confessed. Ibid. The officers then administered new warnings prior to seeking a formal statement, at which time defendant demanded an attorney and questioning ceased. Ibid. Defendant sought to suppress the confession, claiming, among other things, that his request to speak with his father was an invocation of his right to remain silent. Id. at 418.

The Supreme Court held that defendant sought to terminate the interrogation by asking to speak with his father. Id. at 420. The Court noted that defendant indicated he would talk, "but only after a subsequent condition had been met," the condition being an opportunity to speak with his father, and found that "[t]he implied intent to talk later does not change the fact . . . that defendant sought to interrogation." Ibid. Thus, the police were required "to reissue Miranda warnings after defendant had met his father" and any statements made prior to the new warnings were suppressed. Ibid.

The Supreme Court revisited Harvey in State v. Martini, 131 N.J. 176, 231-32 (1993).*fn5 There, the defendant was given Miranda warnings on a total of five occasions. Id. at 229. He agreed to waive his rights and speak to the police if he could first speak to his girlfriend, also a suspect, to inform her that he was going to cooperate. Id. at 230. Defendant was permitted to speak with his girlfriend, after which the police conducted a five-and-one-half-hour interview without administering new warnings. Id. at 199. Defendant made an oral and written confession to the police. Id. at 198-99.

Defendant subsequently sought to suppress his statements on the grounds that his request to speak to his girlfriend before giving a statement constituted an invocation of his right to remain silent, and that the officers thereafter failed to honor his rights scrupulously by resuming the interrogation without administering fresh Miranda warnings. Id. at 228-29. In rejecting defendant's arguments, the Court distinguished the factual circumstances of Harvey:

We found that the defendant [in Harvey] had invoked his right to remain silent by asking to speak to his father. We began our analysis by noting that the defendant's request precipitated "a significant break in the interrogation," amounting to approximately three-and-one-half hours. [Supra, 121 N.J.] at 418-19. However, we also declared that "what makes the interruption significant is not its length so much as its nature" because the defendant, "after three days in custody, [asked] for the chance to consult with a close family member." Id. at 419. In addition, we noted that "[d]efendant's conduct during three days of interrogation and his refusal to answer questions" were expressions of his unwillingness to talk with police. Finally, we found important "what happened when police finally did give" Harvey a new set of Miranda warnings after his oral confession. "Defendant immediately demanded an attorney before any statement could be reduced to writing. It is no stretch to imagine that defendant would have requested an attorney had the police given him warnings when they first interrogated him after he had met with his father." Id. at 420.

Defendant's request to speak to [his girlfriend] prior to talking to officers is materially different from the request made in Harvey in several respects. Prior to his request, defendant did not show a continued reluctance to talk to police. To the contrary, Martini signed forms indicating that he waived his right to remain silent. Defendant did not state, "'I don't believe I want to make a statement at this time[,]'" Hartley, supra, 103 N.J. at 258, nor did he "'indicate [that] he did not want to talk about it . . . .'" State v. Bey, 112 N.J. 45 (1988) (Bey I). Instead, he voluntarily told [the officers] that if he could speak to [his girlfriend], he would tell them about his "complete involvement" in the kidnapping and murder . . . .

Moreover, although defendant argues that his relationship with [his girlfriend] was that of two close family members, we find her status as a participant in the then-alleged crimes to be more significant. This is not a situation in which a defendant created a lengthy gap in an interrogation to seek advice from someone outside of the relevant criminal activity. . . . She was not an outside advisor but a likely co-defendant, potential informant, and possible alibi witness. . . . Indeed, defendant argues that he met with [his girlfriend] not to seek advice but to inform her of his impending confession.

Defendant's request to speak with [his girlfriend] did not amount to an invocation of his right to remain silent. The record does not indicate that defendant, as the defendants in Hartley or Harvey, was unwilling to make a statement before talking with [his girlfriend], and wished her advice. Rather, he merely wished to inform [his girlfriend] of the decision he had already made to give a statement to law-enforcement officers. Nor is there anything in the records, such as a demand for an attorney by defendant before his statement was transcribed, to suggest that "defendant would have requested an attorney had the police given him warnings when they first interrogated him after he had met with" [his girlfriend]. Harvey, supra, 121 N.J. at 420. We conclude, therefore, that defendant's statements and the fruits thereof, including his consents to the searches conducted by police, were properly obtained and admitted into evidence. [Martini, supra, 131 N.J. at 231-33.]

Consequently, "in Martini the Court clarified Harvey by indicating that not merely the words spoken, but the full context in which they were spoken had to be considered in determining whether there had been an invocation of the right to remain silent." State v. Brooks, 309 N.J. Super. 43, 55 (App. Div.), certif. denied, 156 N.J. 386 (1998); see also State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005), certif. dismissed, 189 N.J. 420 (2007).

Whether Hreha's request to speak with his father during his initial interrogation is closer to Harvey, supra, 121 N.J. at 420, or Martini, 131 N.J. at 232, would involve a careful analysis of the underlying facts, which were not developed at the Miranda hearing or discussed by the trial judge. Although the contention may well have merit, we cannot address it because it was not raised in the trial court.

III.

Because we conclude that Hreha's statements to the State Police should have been suppressed, we reverse both convictions. Consequently, we need not reach the other issues raised on appeal.

Reversed.

LIHOTZ, J.A.D., dissenting.

I respectfully disagree with the majority's rejection of the trial judge's finding that defendant voluntarily waived his Miranda*fn1 rights, concluding that finding was not supported by sufficient, substantial, credible evidence in this record. Specifically, I part company with the majority's rejection of the trial judge's credibility determinations and, therefore, would affirm the trial court's March 5, 2010 order denying defendant's motion to suppress his custodial statement.

My colleagues conclude the trial judge erred by relying on facts not of record and by failing to consider defendant's assertions of promised leniency were he to confess. Each of these conclusions is grounded on Sergeant Dias's suppression hearing response when asked whether the possibility of pre-trial intervention (PTI) was discussed. Sergeant Dias replied "I don't remember." The majority concludes the trial court mistakenly found Sergeant Dias "denied" he discussed PTI with defendant and, otherwise, ignored defendant's unrebutted assertions that he was promised not to be handcuffed in his place of employment and would be released from custody in time to perform a weekend employment opportunity. Ante at 22-23.

Although I agree Sergeant Dias never directly contradicted defendant's assertions of promised PTI admission and leniency during the suppression hearing because he did not remember any such discussions,*fn2 I cannot accede to the majority's attacks on the admissibility of the custodial statement. My review of the trial court's opinion denying defendant's motion to suppress reveals the trial court did not find Sergeant Dias denied defendant's claims of PTI admission. Rather, I find the determinations he made, including credibility findings, were supported by the evidence of record and sufficient to show, beyond a reasonable doubt, that the police fully complied with all Miranda requirements when questioning defendant, defendant's custodial statement was voluntarily made, and defendant's will was not overborne by alleged promises of leniency.

The majority determined the trial judge "mistakenly asserted that [Sergeant] Dias denied that anything was said to [defendant] about PTI or not embarrassing him by taking him out of the building in handcuffs." Ante at 18. Accordingly, they conclude "[t]he [trial] judge was wrong in finding that Dias denied that any promises were made concerning PTI or how [defendant] would be treated if he cooperated." Ante at 22.

The portion of the trial judge's written opinion from which this comment is drawn is located among general statements laying out the positions of the parties. In this section of the opinion, defendant's arguments challenging the voluntariness of his custodial statement are discussed, then the counter position of the State is set forth. On the latter issue, the trial judge writes:

Additionally, the State contends that [d]efendant's credibility should be the determinative factor i[n] assessing whether police representations ultimately led to his confession. Defendant's testimony that he was promised PTI in exchange for a statement is directly contradicted by Sgt. Dias, who denies offering PTI to [d]efendant and, additionally, denies having threatened to embarrass [d]efendant by walking him out of the building in handcuffs. The State asks the [c]court, when assessing the witnesses' credibility, to consider that [d]efendant has the most to lose. [(Emphasis added).]

The comment ascribed to the court as a finding regarding Dias' testimony was nothing more than a recitation of the State's opposition to suppression. Review of the State's brief reveals similar language used on this issue; the prosecutor wrote: "defendant's credibility should be evaluated from the viewpoint that he has the most to lose with the admission of this statement. Sgt. Dias denied ever offering PTI to the defendant and embarrassing him by walking him out in cuffs." (emphasis added.)

Following this section restating the parties' positions, the trial judge then expressed his findings and conclusions as follows:

The [c]court has had the benefit of listening to [d]efendant's audio-taped confession and reading the transcript. During the recorded statement, [d]efendant is provided with Miranda warnings and asked if any threats have been made. There are no discussions about any promise of PTI during the statement. In listening to [d]efendant's taped statement the [c]court finds that [d]efendant sounds calm, with no indication he was scared or nervous while speaking with officers. While the State firmly maintains that no misrepresentation or deception induced [d]efendant's confession, the [c]court observes that officers are permitted to use deception and misrepresentation to secure a confession. State v. Cooper, 151 N.J. 326, 353-56 (1997); State v. Roach, 146 N.J. 208, 226-28, [cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 476] (1996). Regardless, the State argues even accepting the [d]efendant's version of events; the conduct does not rise to coercion.

Questioning will not be deemed coercive or improper merely because a law enforcement officer causes the suspect to change his mind and confess, unless such questioning was so coercive the suspect's will was overborne. State v. Miller, 76 N.J. 392 (1978); State v. Manning, 165 N.J. Super. 19 (App. Div. 1978)[, certif. denied, 81 N.J. 358 (1979)]; Frazier v. Cupp, 394 U.S. 731, 739[, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 689, 693] (1969).

Defendant testified on cross-examination that he confessed to printing the thousands of copies of a racist flyer from his computer because he understood he would be released from custody that Friday afternoon so he could finish a large landscaping job scheduled for that weekend. The [c]court finds [d]efendant's testimony not credible. Namely, that he was confessing to tampering with his employer, the Attorney General's Office, computer network and engaging in bias intimidation so he would be released and could earn extra money in his self-employed landscaping venture. On the other hand, the [c]court finds Detective Sergeant Dias a credible witness in that he testified in a straightforward manner on direct and conceded certain points on his cross-examination.

After an evaluation of the totality of the circumstances surrounding [d]efendant's statement, including an analysis of all relevant factors, including evaluating the credibility of the witnesses, the [c]court finds [d]efendant's waiver of his Miranda rights was provided voluntarily. The statement was not the result of coercion, or induced by deliberate police misrepresentations to this [d]efendant. As a result, [d]efendant's motion to suppress his statement is DENIED.

I determine these are the findings that must be analyzed to discern whether the trial court erred in admitting defendant's custodial statement.

In analyzing whether a defendant's custodial statement is admissible, the evidence must show the statement was the product of the voluntary, knowing and intelligent waiver of a defendant's constitutional right to remain silent. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461 (2005). "[A]n involuntary statement is inadmissible for any purpose." State v. Pillar, 359 N.J. Super. 249, 265 (App. Div.) (citing State v. Burris, 145 N.J. 509, 534 (1996)), certif. denied, 177 N.J. 572 (2003). "The State must prove beyond a reasonable doubt that a defendant's [custodial statement] was voluntary and was not made because the defendant's will was overborne." Knight, 183 N.J. at 462. As the United States Supreme Court has explained:

The inquiry has two distinct dimensions.

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986) (internal citations and quotations omitted).]

A determination of voluntariness is a legal one. Pillar, supra, 359 N.J. Super. at 268. We need not defer to the trial court's conclusions. State v. Harris, 181 N.J. 391, 420-21 (2004). In making this determination, we examine "the totality of the circumstances, including both the character[] of the defendant and the nature of the interrogation." State v. Galloway, 133 N.J. 631, 654 (1993). Accord Pillar, supra, 359 N.J. Super. at 269.

I initially note, Miranda warnings were properly administered by Sergeant Dias when he first questioned defendant and again by Detective Fields prior to recording defendant's statement. At that time, and again during the suppression hearing, defendant clearly communicated that he knew what was happening, understood his rights, and never invoked his right to counsel.

"Miranda does not require a written waiver." State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). However, this alone does not end our inquiry of the totality of the surrounding circumstances to discern the admissibility of defendant's custodial statement. Pillar, supra, 359 N.J. Super. at 269.

My colleagues readily agree the trial judge properly found that "the general characteristics of the initial interrogation, such as [the] time of day, location, and number of people present, were not themselves coercive." Ante at 18.

Additionally, one must not ignore the limited length of detention. I note the officers' questioning of defendant started at approximately 1 p.m. and ended at approximately 3:30 p.m., a period which included the time to transport defendant to headquarters. Interrogation was neither prolonged nor unduly repetitive. Galloway, supra, 133 N.J. at 654. Further, the interrogation involved absolutely no physical punishment or mental exhaustion. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); Miller, supra, 76 N.J. at 402.

Second, defendant's characteristics do not engender a finding that his will was overborne. Defendant was not unreasonably young as he was twenty-five years old when arrested. Defendant was neither agitated nor distraught when questioned by the police. The trial judge, who had the benefit of listening to his taped statement, described defendant's voice as "calm with no indication he was scared or nervous[.]" Defendant was not uneducated or unintelligent; he had achieved college credits and worked in a highly technical and skilled position in the OAG's IT department.

Third, a determination of whether Sergeant Dias made promises of leniency, as defendant asserts, was particularly based upon witness credibility. The trial court succinctly made these factual determinations. In this regard, I disagree with the majority that "the [trial] judge mischaracterized [defendant]'s testimony to the extent he quoted only [defendant]'s exchange with the prosecutor on cross-examination[.]" Ante at 22-23.

In assessing credibility, the trial judge referenced defendant's direct testimony explaining his "top priority [in making the custodial statement] was that I wouldn't go to jail for the weekend. I wanted to make sure that I can finish my other priorities for my own business and that was a much easier way to accomplish what I had already planned." An assertion of lenient treatment is implicit in the court's reiteration of defendant's basis for confessing, that is, "so he would be released and could earn extra money in his self-employed landscaping venture." The trial court's opinion makes clear these assertions were considered and rejected as not credible.

Similarly, Sergeant Dias was found to be "a credible witness" based on his forthright statements and candid admissions that defendant might not have been handcuffed until he had exited his place of employment and that he did not remember certain topics of conversation arising during questioning.

Notwithstanding Diaz's uncertainty on whether promises of leniency occurred, the trial judge's credibility determinations were sufficient to support the rejection of defendant's contentions. In assessing testimonial evidence, we must defer to credibility and other factual findings supported by the evidence because the trial judge is in a unique position to observe the demeanor or the witnesses as they testify. State v. Locurto, 157 N.J. 463, 474 (1999).

Fourth, if misrepresentations were made regarding defendant's eligibility for PTI that does not lead to a conclusion the confession was involuntary.

Although police misrepresentations are relevant in analyzing the totality of the circumstances surrounding a claim that a confession was involuntary, such "misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge." State v. Cooper, 151 N.J. 326, 355 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000) (citations omitted). "Moreover, a misrepresentation by police does not render a confession . . . involuntary unless the misrepresentation actually induced the confession." Ibid. (citation omitted). [Pillar, supra, 359 N.J. Super. at 269.]

See also State v. Cooper, 151 N.J. 326, 355 (1997) (holding "misrepresentations alone are usually insufficient to justify a determination of involuntariness"), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000).

Moreover, the mere fact that a promise is made to a defendant in exchange for a statement does not automatically render the statement involuntary. See State v. J.G., 261 N.J. Super. 409, 424-25 (App. Div.) (finding the defendant's statement was voluntary even though he was told he could go home after his statement), certif. denied, 133 N.J. 436 (1993); State v. Starling, 188 N.J. Super. 127, 131 (Law Div. 1983) (finding the defendant's plea was voluntary despite prosecutor's promise not to seek an extended term or parole ineligibility term), aff'd, 207 N.J. Super. 79 (App. Div. 1985), certif. denied, 103 N.J. 481 (1986). Further, police comments suggesting a confession would make things easier, or that they would work with defendant, if made, were not misrepresentations because a defendant's "willingness . . . to cooperate with law enforcement authorities[,]" is a recognized mitigating factor in sentencing. N.J.S.A. 2C:44-1b(12).

Here, the question is not whether police falsely led defendant to believe he would receive PTI, but whether defendant's confession was "the product of an essentially free and unconstrained choice by its maker" or whether "his will has been overborne and his capacity for self-determination critically impaired[.]" Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.

In Pillar, supra, the police officer misrepresented that the defendant could speak to him "off the record." 359 N.J. Super. at 262. The defendant then offered inculpating statements. Ibid. We concluded the defendant was deceived into confessing. Id. at 268.

Pillar's facts are widely distinguishable from those presented here. Defendant was not tricked into making an off the record statement, or told his statements would not be used against him notwithstanding the Miranda warnings. In fact, an examination of defendant's suppression hearing testimony reveals a much different picture. Defendant stated: they told me if I admitted what I did and explained to them how I did it, then they would try to offer me . . . an easy sentence so to speak . . . .

They told me that, you know, we can do this the hard way or I can give them the information they want, and they'll try to work with me. And at least that way I cannot walk out of the building with handcuffs. And I would rather have done that, so that's the option I chose.

Well, they said normally the process, it takes two, . . . or three days . . . so I definitely didn't want to be in jail for the weekend.

From the beginning, defendant was Mirandized and informed he was being questioned regarding his role in the "print job." In fact, his suggestion that the conversation with State Police somehow involved a previously filed employment complaint was quickly dispelled by Sergeant Dias, who stated his inquiry regarded the incident under investigation. An examination of defendant's testimony evinces his recognition he was to be arrested whether or not he provided a statement.

Even if misrepresentations were made, the evidence does not render the confession involuntary, Galloway, supra, 133 N.J. at 655, because the nature of the assurances did not induce the confession. Defendant "was in no way deluded or misled into believing that the state trooper[s] w[ere] acting in any capacity other than as . . . interrogating police officer[s] in the investigation of a serious crime." Miller, supra, 76 N.J. at 404. The Detective's assurances that defendant would be better off if he cooperated was not inaccurate or a ploy.

Finally, during the suppression hearing, defendant admitted he understood and voluntarily waived his rights and that no efforts were made by the police to overbear his will. Defendant was an adult, of normal intelligence, who was fully apprised of his constitutional rights. The facts evince defendant voluntarily waived these rights without being subject to threats, intimidation, coercion, prolonged interrogation, sleep deprivation, physical abuse or psychological ploys. Even if the police promised to aid him in getting an "easy sentence," they did not act in a way that overbore his will resulting in an inadmissible, involuntary confession. See Frazier, supra, 394 U.S. at 739, 89 S. Ct. at 1425, 22 L. Ed.2d at 693 (upholding custodial statement as voluntary after reviewing the totality of the circumstances even though police falsely told the defendant another party had confessed). I conclude the totality of the circumstances in this matter support the trial court's conclusion that defendant's confession was voluntarily made. See State v. Johnson, 42 N.J. 146, 162 (1964).


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