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State v. L.H.

Supreme Court of New Jersey

July 22, 2019

State of New Jersey, Plaintiff-Appellant,
v.
L.H., Defendant-Respondent.

          Argued March 11, 2019

          On certification to the Superior Court, Appellate Division.

          Kayla Elizabeth Rowe, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Kayla Elizabeth Rowe, of counsel and on the briefs).

          Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alicia J. Hubbard, of counsel and on the briefs).

          Farbod K. Faraji argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Gibbons, and American Civil Liberties Union of New Jersey Foundation, attorneys; Farbod K. Faraji, Lawrence S. Lustberg, and Alexander Shalom, on the brief).

          Richard P. Lomurro argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Richard P. Lomurro, of counsel and Christina Vassiliou Harvey, of counsel and on the brief).

          ALBIN, J., writing for the Court.

         The primary issue in this appeal is whether the interrogation techniques that included false promises of leniency induced defendant L.H. to confess to two alleged sexual assaults and one alleged attempted sexual assault and overbore defendant's will. In this context, the Court must determine whether the State proved beyond a reasonable doubt that, under the totality of the circumstances, defendant's confession was voluntary. The Court also considers whether a remand is necessary because, when M.H., a victim, identified defendant from a photographic lineup, the full dialogue between M.H. and the administering officer in making the identification was not memorialized.

         Defendant, who was suspected of committing the alleged offenses, was stopped and brought to the Bloomfield police headquarters on August 6, 2011, at about 2:30 a.m. After being held for three hours, he was brought to an interview room. For the first fifty-five minutes, Detective Lieutenant Joseph Krentz and Detective Thomas Fano secured information from defendant about his education, employment, prior residences, family, and his reason for driving in Bloomfield that evening. Almost an hour into the interrogation, Detective Fano told defendant that he had a "problem." For the next twenty minutes, while defendant deflected questions that would have implicated him in a crime, the two detectives suggested that, if defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his child. Indeed, defendant was told that the truth would set him free. The detectives' assurances and suggestions that defendant would receive help and counseling, stay out of jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance defendant repeatedly expressed about giving up the right to remain silent.

         For example, Detective Krentz stated, "I just need to hear your side of the story so I can find out exactly where you are as far as getting the help you need, the right help." Defendant asked, "The help I need is not sending me to jail is it?" Detective Krentz: "Not at all. Nobody gets rehabilitated in jail." Detective Fano: "Yeah, I agree." The detectives, moreover, continually minimized the nature of the assaults of which defendant was suspected, telling him, "You're not a bad guy," and "You didn't hurt anybody."

         One hour and fourteen minutes into the interrogation, defendant began to make admissions about his involvement in the charged offenses. The interrogation ended at 8:51 a.m. -- more than three hours after it had begun. In his testimony at the hearing, Detective Krentz conceded that "[e]very time [defendant] expressed hesitancy, [the detectives] talked about the help he was going to get," and that "it was clear . . . that 'help' meant counseling." The trial court rejected defendant's argument that his will was overborne by false promises and declined to suppress his confession.

         Defendant also moved for an evidentiary hearing because of the failure of the police to record, electronically or otherwise, the identification procedure that led to M.H. identifying defendant as her assailant. During the fourteen earlier identification procedures, M.H. was unable to make a positive identification of her assailant. On August 8, 2011, two days after defendant's arrest, M.H. viewed a fifteenth photographic array. In the report from that identification, the position of each photograph is given a sequential number from one to six. Next to photo position number three -- designating defendant's photograph -- is the word "SUSPECT." The report does not explain why the word "SUSPECT" was used rather than the six-digit number and letter assigned to every other photograph.

         The trial court denied defendant's motion for a hearing, and defendant entered guilty pleas to five counts in the indictment, preserving his right to appeal the denial of both his motion to suppress his confession and his motion for an evidentiary hearing. In an unpublished opinion, the Appellate Division reversed the trial court, vacating defendant's convictions and remanding for further proceedings. The Court granted the State's petition for certification. 233 N.J. 24 (2018).

         HELD: The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant's statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.

         1. Due process requires that the State prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne. A confession which is the product of physical or psychological coercion must be considered to be involuntary and is inadmissible in evidence regardless of its truth or falsity. The voluntariness determination weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing. Relevant factors include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved, as well as previous encounters with law enforcement. The ultimate determination of voluntariness depends on the totality of the circumstances. (pp. 22-26)

         2. Because a suspect will have a natural reluctance to furnish details implicating himself, an interrogating officer may attempt to dissipate this reluctance and may even tell some lies during an interrogation. Certain lies, however, may have the capacity to overbear a suspect's will and to render a confession involuntary. Thus, a police officer cannot directly or by implication tell a suspect that his statements will not be used against him because to do so is in clear contravention of the Miranda warnings. Other impermissible lies are false promises of leniency that, under the totality of circumstances, have the capacity to overbear a suspect's will. A court may conclude that a defendant's confession was involuntary if interrogating officers extended a promise so enticing as to induce that confession. (pp. 26-30)

         3. The video-recorded interrogation here reveals that the detectives made (1) representations that directly conflicted with the Miranda warnings, (2) promises of leniency by offering counseling as a substitute for jail, and (3) statements that minimized the seriousness of the crimes under investigation -- all relevant factors under the totality-of-the-circumstances test. In the totality of the circumstances, given the combination of all the relevant evidence and factors, the State failed to show beyond a reasonable doubt that the interrogators' representations to defendant did not overbear his will and induce him to confess. The detectives secured an involuntary confession. Because defendant preserved his right to appeal the denial of his motion to suppress the confession, defendant's guilty plea must be vacated. (pp. 30-39)

         4. In State v. Delgado, the Court required that "law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." 188 N.J. 48, 63 (2006). The Court instructed that "[w]hen feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing," and "[w]hen not feasible, a detailed summary of the identification should be prepared." Ibid. Without issuing a mandate, the Court added that "electronic recordation is advisable." Ibid. (pp. 39-40)

         5. Here, Detective Michael Ruggiero, who administered the photographic array, did not electronically record the identification procedure or make a "verbatim account" of the words exchanged between him and the witness. Nor is there any explanation why he did not do so. The failure to abide by the dictates of Delgado is all the more inexplicable because the identification procedure was prearranged and occurred during normal operating hours at police headquarters, where undoubtedly electronic recording devices were available. The evidentiary hearing requested by defendant would have provided defendant the opportunity to attempt to secure the information denied to him by the Delgado violation. Accordingly, the Court remands for an evidentiary hearing to explore the issue of suggestiveness in the identification process and for the determination of an appropriate remedy for the Delgado violation, which may include a jury charge on the State's failure to follow the recordation procedures set forth in Delgado. (pp. 40-43)

         The judgment of the Appellate Division is affirmed.

          JUSTICE PATTERSON, concurring in part and dissenting in part, concurs with the majority and the Appellate Division that the procedure used by police officers in connection with defendant's identification by M.H. did not comport with Delgado and that a remand is needed so that the trial court may decide whether the identification procedure entailed suggestiveness and, if necessary, impose an appropriate remedy. Justice Patterson does not agree, however, that defendant's confession should be suppressed, stressing that the trial court denied defendant's motion to suppress after it reviewed the videotape of defendant's confession and other evidence presented, made detailed factual findings, and concluded that the State had met its burden to prove beyond a reasonable doubt that the confession was voluntary. In Justice Patterson's view, neither the Appellate Division nor the majority afforded the trial court's findings the substantial deference to which they are entitled. Although a portion of the interrogation crossed the line between proper and improper police tactics, Justice Patterson explains, the trial court's finding that defendant's confession was voluntary was supported by sufficient credible evidence in the record, including the videotape.

          JUSTICES LaVECCHIA, FERNANDEZ-VINA, and TIMPONE join in JUSTICE ALBIN's opinion. JUSTICE PATTERSON filed an opinion -- concurring in the remand for an evidentiary hearing as to the identification procedure and dissenting from the suppression of defendant's confession -- in which CHIEF JUSTICE RABNER and JUSTICE SOLOMON join.

          OPINION

          ALBIN JUSTICE.

         No piece of evidence may have greater sway over a jury than a defendant's confession. For that reason, it is of critical importance that law enforcement officers use interrogation techniques that will elicit confessions by lawful means.

         To ensure that law enforcement officers turn square corners, New Jersey's jurisprudence requires that the State "prove the voluntariness of a confession beyond a reasonable doubt." State v. Galloway, 133 N.J. 631, 654 (1993). In their gatekeeping roles, our courts are charged with admitting into evidence only lawfully secured confessions. False promises of leniency --promises "so enticing" that they induce a suspect to confess -- have the capacity to overbear a suspect's will and to render the confession involuntary and inadmissible. See State v. Hreha, 217 N.J. 368, 383 (2014).

         The primary issue in this appeal is whether the interrogation techniques that induced defendant L.H. to confess crossed the forbidden line drawn by our case law.

         In this case, the police took defendant into custody on suspicion that he had sexually assaulted two women and attempted to sexually assault another woman. During an interrogation that lasted approximately three hours, the two interrogating detectives repeatedly promised defendant counseling, indicating that he would not go to jail if he cooperated. The detectives also told defendant that "the truth would set him free" -- advice seemingly at odds with the Miranda[1] warning given to defendant that anything he said could be used against him. More than an hour into the interrogation, defendant made incriminating statements that implicated him in all three crimes. He was arrested and criminally charged.

         Two days later, one of the victims, while viewing a photographic lineup, identified defendant as her assailant. The officer conducting the identification did not record the full dialogue between him and the victim, or the degree of confidence expressed by the victim in making the identification. Defendant claimed that the failure to memorialize the identification procedure violated State v. Delgado, 188 N.J. 48 (2006).

         In pretrial hearings, the trial court determined that defendant's confession and the victim's identification were admissible. The court determined that the interrogating detectives did not overbear defendant's will and that defendant made a voluntary confession. The court also determined that defendant failed to show that the identification procedure was suggestive, entitling him to a Wade[2] hearing, or that the recordation of that procedure violated the law. After the pretrial hearings, defendant pled guilty to various offenses but preserved his right to appeal the trial court's evidentiary decisions.

         The Appellate Division reversed. It held that the State failed to prove the voluntariness of the confession, finding that the detectives made false promises that overbore defendant's will. It also remanded to the trial court for an evidentiary hearing to decide whether the identification procedure complied with Delgado and, if not, to consider the admissibility of the out-of-court identification and an appropriate remedy.

         We affirm. We hold that the State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant's statement was voluntary. Based on that standard, the detectives overbore defendant's will by false promises of leniency that assured counseling instead of incarceration, by representations that conflicted with the Miranda warnings, and by minimization of the gravity of the offenses. Defendant therefore may withdraw his guilty plea. Moreover, the failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of both a Wade hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court. We remand for proceedings consistent with this opinion.

         I.

         A.

         On May 29, 2012, an Essex County grand jury returned a twelve-count indictment, charging defendant with first-degree kidnapping of M.H. and A.D., N.J.S.A. 2C:13-1(b)(1) (two counts); first-degree aggravated sexual assault of M.H. and A.D., N.J.S.A. 2C:14-2(a)(3) (four counts); second-degree aggravated assault of M.H. and A.D., N.J.S.A. 2C:12-1(b)(1) (three counts); first-degree attempted aggravated sexual assault of V.B., N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3) (one count); and third-degree terroristic threats to M.H. and A.D., N.J.S.A. 2C:12-3(a) (two counts). The indictment alleged that defendant sexually assaulted M.H. on June 18, 2011 and A.D. on July 23, 2011 in Bloomfield Township and attempted to sexually assault V.B. on August 4, 2011 in Belleville Township.

         Defendant moved to suppress the confession he made during an interrogation conducted by Detective Lieutenant Joseph Krentz and Detective Thomas Fano of the Bloomfield Police Department. Defendant argued that the detectives induced his confession by making false promises that he would not face jail time, thus overbearing his will and rendering his confession involuntary.

         The trial court held a two-day Miranda hearing to determine the admissibility of the confession. During the State's presentation, Detective Krentz testified and the video-recorded interrogation was admitted into evidence. We discern the following facts from that record.

         On August 6, 2011, at about 2:30 a.m., a task force of law enforcement officers from the Bloomfield and Belleville police departments and the Essex County Prosecutor's Office, investigating the recent sexual assaults of women, stopped a motor vehicle in Bloomfield driven by defendant, who was suspected of committing the offenses. Detective Krentz directed a patrol officer to transport defendant to Bloomfield police headquarters.

         For approximately three hours at headquarters, defendant remained either handcuffed in a room or confined in a cell. Then, at 5:31 a.m., Detectives Krentz and Fano led defendant into an interview room, where the detectives sat on the opposite side of a desk from defendant.

         Detective Fano read defendant the Miranda warnings, advising him that he had a right to remain silent and to have an attorney present, and that anything he said could "be used against [him] in [a] court of law." Defendant signed the waiver-of-rights form. When defendant asked why he was being detained, Detective Fano responded that they would "get to that" after they asked "a couple of basic questions," adding, "you are here for a reason. . . . We didn't pick you out of the tree."

         For the first fifty-five minutes, the detectives secured information from defendant about his education, employment, prior residences, family, and his reason for driving in Bloomfield that evening. They learned that defendant was a high school graduate with several years of college credits and that he had a young daughter with a former girlfriend. They also learned that defendant had been convicted of a sexually related offense as a result of a claimed consensual relationship with a sixteen-year-old female when he was twenty-one or twenty-two years old and that he was a registered sex offender.

         The detectives at first made no headway with defendant when inquiring about his movements in Bloomfield several evenings earlier. The interrogation began in earnest when defendant denied having any familiarity with Franklin Street -- the site of two sexual assaults against M.H. and A.D.

         Almost an hour into the interrogation, Detective Fano announced that they had been watching him, and did not "want to pussyfoot with [him]." The detective reminded defendant that, when arrested, he was wearing gloves, his pants were open, and condoms were found in his car. Detective Fano then told defendant that he had a "problem." For the next twenty minutes, while defendant deflected questions that would have implicated him in a crime, the two detectives suggested that, if defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his child. Indeed, defendant was told that the truth would set him free.

         The promises of "help" and "counseling" became a consistent theme of the interrogation:

[Detective Krentz]: We want to get you the help that you need.
[Detective Fano]: You need some help, dude. You got a problem.
[Detective Krentz]: We want to make sure you get the right help.
[Detective Fano]: We're here to help you.

         The detectives stayed on theme, repeatedly telling defendant that they would get him the help he needed for his problem if he cooperated. A few examples will suffice: "I want to get you the help that you need"; "I know with the right help . . . you'll be fine down the road"; "we're also trying to help you rebuild for the future."

         The detectives made clear that defendant had to be honest to receive counseling and help -- and to remain free to raise his child:

[Detective Fano]: [W]e're gonna help you out. You need some counseling. You need some more counseling.
[Detective Krentz]: And we're willing to get you the help that you need.
[Detective Krentz]: So we're willing to get you the help that you need but you gotta be honest.
[Detective Fano]: You gotta be honest.
[Detective Krentz]: You gotta be honest.
[Detective Fano]: Think about your daughter. I want you to be there to raise her. . . . 'Cause women need guidance from a guy.
[Detective Fano]: [The truth is] going to set you free. The truth -- and it is a true saying, the truth will set you free.
[(emphases added).]

         Detective Krentz allayed concerns raised by defendant about whether his cooperation would lead to his immediate incarceration because, as defendant told the detectives, in his last experience with the criminal justice system, after he told "the truth" to the police during an interrogation, he was put in jail:

[Defendant]: [I] told them the truth and I told them exactly what -- what happened, it happened that quick.
[Detective Fano]: Well, that's not gonna happen -- it's not gonna go down like that. It's not gonna --
[Detective Krentz]: Look at me. Look at me. . . . If I'm gonna lock you up, I'm gonna tell you I'm gonna lock you up. I'm not gonna bullshit you.

         The detectives reassured defendant he was not facing jail:

[Defendant]: Am I going to jail tonight? Is this going to be my last meal or something like that?
[Detective Krentz]: No, no, not at all.
[Defendant]: That's what everybody says and then --
[Detective Krentz]: That's TV bullshit, dude. That's TV.

         The detectives' assurances and suggestions that defendant would receive help and counseling, stay out of jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance defendant repeatedly expressed about giving up the right to remain silent:

[Defendant]: I'm not trying to dig myself in a hole.
[Defendant]: I just don't want to jeopardize all the stuff that I've been trying to rebuild --
[Detective Fano]: We understand. Rebuild. . . . We want you to get more counseling so you can continue.
[Defendant]: What I'm trying to say is that I can't afford to stop my -- my working -- I can't afford to ...

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