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State of New Jersey v. Kendall Funchess

September 17, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENDALL FUNCHESS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-04-0372.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 20, 2012

Before Judges Espinosa and Guadagno.

Defendant was convicted by a jury of second-degree weapons offenses after his motion to suppress a statement given to police officers was denied. The sole basis for his appeal from his convictions is that the trial court erred in denying his suppression motion. For the reasons that follow, we reverse.

At approximately 6:00 p.m. on October 14, 2008, Detective Paul Toth of the Mercer County Sheriff's Office responded to a location in Trenton after receiving a report of shots fired. Defendant was identified as a suspect that evening and transported to the Trenton Police Department. While Toth and defendant were in the elevator on route to the interview room and before any questioning occurred, defendant said, "I can't believe I'm the one that gets arrested. He shoots at me." Toth testified that he did not follow up this statement with any questions because they had not arrived at the interview room and had not advised him of his Miranda*fn1 rights.

Toth and Detective Anthony Aguanno of the New Jersey State Police conducted an interview of defendant that was recorded. The interview began with Aguanno introducing the officers by stating, "Alright, alright, alright, alright. Hang on one second. Just, just let me introduce us. I'm Tony, this is Paul. Alright?" Aguanno proceeded to ask defendant for the spelling of his name, his address, and date of birth. When Aguanno asked for defendant's cell phone number, he replied, "Damn, word!" Aguanno said, "Well give me, give me a number to contact you then and if you . . . I have to put something down." After defendant supplied a number, Aguanno asked, "[w]hat is that?" Defendant provided the following response:

That's, that's the um sellin' the home, that's my Aunt [sic] house. I be over there all the time. Um, in a month 'cause they sell (inaudible) 'cause there ain't no need for that, for ya'll to have that. And let me give ya'll my house number, um . . .

When Aguanno asked for the name of his aunt, defendant said, "My Aunt's name is, damn, see man, my heads [sic] fucked up right now see." Neither officer inquired as to whether defendant consumed any alcohol or drug in response to this statement.

Aguanno then stated, "Alright, listen, uh, we're just, we're just here to talk to you about what happened tonight, but before we do we just have to read you your Rights. It's a standard procedure." Defendant replied that he was not read his rights when he was arrested and was told that the officers did not have to do so on the street because they were doing it now. Then there was the following exchange:

Tony: We're just getting it out of the way. We'll talk.

Paul: We'll talk.

Tony: And you'll give, get your opportunity to tell us what happened.

Funches: No lawyer, no nuthin'?

Tony: Hey, listen.

Funches: That's what I'm doin' by signin' that paper, I'm waivin' my right at, to a lawyer?

Tony: Well when you read it, yeah, we're just, we need your side of the story. The only way to get your side of the story is to read this to you. And you ...


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