State v. James P. Kucinski(076798) ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. James P. Kucinski (A-58-15) (076798)
Argued October 26, 2016 -- Decided January 30, 2017
Solomon, J., writing for a unanimous Court.
In this appeal, the Court considers whether cross-examination regarding facts to which defendant testified
at trial, but omitted in his statement to police, was proper.
Defendant was arrested and taken to police headquarters for questioning about the bludgeoning death of his
brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the
interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room
and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with
the officers, stating “I’m gonna tell you the truth.” He was re-read his Miranda rights, which he waived.
Defendant explained that a few weeks earlier a fight had occurred between him and his brother. When the
officers attempted to redirect the discussion to “how it started today” -- the day of John’s death -- defendant
responded, “Ah, well let’s not talk about that part.” He then shifted the dialogue to other topics. In response to
inquiries about how John injured defendant, he stated, “Like I said, we’ll forget about that part.” Defendant
responded to a series of questions about events leading up to the fight and the injuries he sustained. As the
interrogation went on, defendant continued to turn to other topics and to evade answering questions directly.
Several times throughout the interrogation defendant answered questions with “I don’t know.” When asked how
defendant felt about John’s death, he said he would “rather [] just see a lawyer,” and the interrogation ended.
Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor
his invocation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to
trial. At trial, the prosecutor asked one of the officers if defendant spoke in detail about the events on the day John
died and if defendant was given an opportunity to “explain what happened that day.” When defense counsel
objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be
permitted to cross-examine him on inconsistencies between his trial testimony and statements to police.
Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over
defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified
to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor
focused on details that defendant testified to but failed to mention to police during his interrogation. After further
questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed
the jury that defendant’s right to remain silent should be limited to assessing defendant’s credibility and may not be
used to make the determination of guilt. Defense counsel did not object.
When the trial resumed, defense counsel informed the court that the limiting instruction advised the jury
that defendant’s silence could be used for impeachment purposes. Counsel requested a clarifying instruction to fix
this error, which the trial court issued. This instruction was repeated, without objection, during the final jury charge.
The jury found defendant guilty of passion/provocation manslaughter, as well as third-degree possession of a
weapon for an unlawful purpose.
The Appellate Division reversed defendant’s conviction and remanded for a new trial, determining that the
prosecutor’s questions on cross-examination were improper. The panel found that defendant invoked his right to
remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions.
The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment.
Further, the Appellate Division found the trial court’s instructions to the jury were fatally flawed.
1
The Court granted the State’s petition for certification. 224 N.J. 282 (2016).
HELD: Defendant waived his right to remain silent and therefore the State permissibly questioned defendant on cross-
examination about the inconsistencies between his post-arrest statement to police and his statement on direct-
examination at trial.
1. The United States Supreme Court first considered whether a defendant’s pretrial silence could be used to impeach
his credibility on cross-examination at trial in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99
(1975). A year later, this Court considered a similar question in State v. Deatore, 70 N.J. 100, 108-09 (1976), and held
that a defendant who remains silent “at or near the time of his arrest” cannot be cross-examined about that silence if he
subsequently testifies to an exculpatory version of events at trial. In State v. Lyle, 73 N.J. 403 (1977), this Court again
incorporated U.S. Supreme Court authority and concluded that “the State’s use of a defendant’s post-arrest silence for
purposes of impeaching his exculpatory defense violates due process” and is “improper irrespective of whether
[Miranda] warnings are given.” Id. at 409-10 (citation omitted). The Court applied the general principles of Lyle and
Deatore in State v. Muhammad, 182 N.J. 551, 568 (2005), where the Court explained that “by speaking with the police,
a suspect does not waive his right to invoke the privilege and remain silent at some later point.” (pp. 20-23)
2. With respect to cross-examination of a defendant on factual inconsistencies between his testimony at trial and his
pretrial statement, the Court has held that “it is not an infringement of a defendant’s right to remain silent for the State
to point out differences in the defendant’s testimony at trial and his or her statements that were freely given.” State v.
Tucker, 190 N.J. 183, 189 (2007). (pp. 24-26)
3. When a defendant invokes his or her right to remain silent, the interrogation must cease, at least until some time has
lapsed and the defendant is reread his Miranda rights. That being said, even if a defendant is successful in invoking his
or her right to remain silent about a particular subject, this right is waived if the defendant discusses, of his or her own
volition, that very topic just moments later. (p. 27)
4. In the present case, defendant waived his right to remain silent. Defendant was cognizant of his Miranda rights and
clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings.
However, after first invoking his right to counsel, it was defendant who asked to speak with officers so that he could
“tell [them] the truth.” After acknowledging that he had fought with his brother, defendant avoided questions by saying
“[a]h, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember.”
Considered in context, defendant’s refusal to answer certain questions was not an attempt to end the dialogue, but rather
was “part of an ongoing stream of speech,” which included information about the altercation and defendant’s family
disputes. Most importantly, defendant voluntarily provided details about the altercation that led to John’s death—the
very subject about which he previously said, “let’s not talk about that part.” In other words, defendant told
investigators about his recollection of the altercation with John—he thus spoke on that subject. (pp. 27-29)
5. Because defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial,
but omitted in his statement to police, was proper. During interrogation, defendant claimed his injuries were caused by
John biting him. Defendant’s story changed during his testimony when he claimed John stabbed him with a
screwdriver and he was forced to defend himself. Therefore, the State’s cross-examination sought to highlight the
inconsistency between defendant’s statement to police during interrogation and his testimony on direct examination.
This inconsistency is a permissible area for cross-examination. (pp. 29-30)
6. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to the jury, to
which defendant did not object, was harmless. (pp. 30-31)
The judgment of the Appellate Division is REVERSED and defendant’s conviction is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-58 September Term 2015
076798
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JAMES P. KUCINSKI,
Defendant-Respondent.
Argued October 26, 2016 – Decided January 30, 2017
On certification to the Superior Court,
Appellate Division.
Nancy A. Hulett, Assistant Prosecutor,
argued the cause for appellant (Andrew C.
Carey, Middlesex County Prosecutor,
attorney).
Rochelle M.A. Watson, Assistant Deputy
Public Defender, argued the cause for
respondent (Joseph E. Krakora, Public
Defender, attorney).
Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
We are called upon to determine whether a defendant invoked
his right to remain silent after originally waiving his Miranda1
rights. If so, we must also decide whether the State wrongly
1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
1
cross-examined defendant by highlighting missing details in his
post-arrest statement and whether the trial court’s curative
instructions were flawed and warrant reversal of defendant’s
conviction.
Defendant was brought to the police station for questioning
about the bludgeoning death of his brother, John. After
receiving Miranda warnings, defendant refused to speak with
police officers and was left alone for approximately eighty
minutes. When the officers returned and told defendant that he
was going to be charged with John’s murder, defendant asked to
speak to the officers. He was re-read the Miranda warnings and
waived his Miranda rights. Questioning ensued.
During defendant’s interrogation, he refused to answer
certain questions about his altercation with John. Instead, he
pivoted the conversation to other topics. Eventually, however,
defendant discussed details about the confrontation with, and
death of, his brother. When asked how defendant felt about
John’s death, he said he would “rather [] just see a lawyer,”
and the interrogation ended.
Defendant was indicted for John’s murder and unsuccessfully
moved to suppress his statement to police. The matter proceeded
to trial, and defendant testified on his own behalf. Over
defense counsel’s objection, the prosecutor was permitted to
cross-examine defendant about details of the incident he
2
testified to in his direct examination but omitted from his
post-arrest statement to police.
The jury convicted defendant of passion/provocation
manslaughter, N.J.S.A. 2C:11-4(b)(2), and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d). The Appellate Division reversed defendant’s conviction
and remanded for a new trial. The panel found that the
prosecutor’s cross-examination of defendant was improper and
violated defendant’s right against self-incrimination. Further,
the panel held that the instructions given to the jury were
fatally flawed. We granted the State’s petition for
certification.
We hold that defendant waived his right to remain silent by
voluntarily discussing details of his altercation with John,
just moments after telling the officers that he did not wish to
comment on that particular subject. Because defendant did not
assert his right to silence, the State permissibly questioned
defendant on cross-examination about the inconsistencies between
his statement during interrogation and his statement on direct-
examination. In light of this holding, we find any error in the
trial court’s instructions to be harmless. Therefore, we
reverse the judgment of the Appellate Division and reinstate
defendant’s conviction.
I.
3
A.
The pertinent facts of record follow. Defendant’s brother,
John, lived in Edison with their eighty-one-year-old mother,
Anna, and served as her caretaker. Defendant lived with his
long-term girlfriend about a quarter mile away. Defendant and
John had a strained relationship with a history of violent,
physical altercations. According to their oldest brother,
Steven, defendant’s drinking was the root of most of their
conflicts. As a result, a family friend, Ralph Hopping, acted
as a liaison between John and defendant and was defendant’s only
source of information about his mother’s deteriorating health.
The day before John’s death, defendant called Hopping
because he was angry that he could not speak directly to his
mother and wanted an update on her condition. He told Hopping,
“You better get your suit ready. I have two brothers that
belong in the cemetery.”
The next day, according to defendant’s girlfriend, John
spoke to defendant over the phone and threatened to kill
defendant if he came to the house to see their mother. After
the telephone conversation ended, defendant told his girlfriend
that he was going to see his mother and left the house.
Defendant returned home thirty minutes later with blood on his
4
arms, face, neck, and clothing. When his girlfriend asked about
the blood, defendant told her, “I just did John.”
Meanwhile, one of Anna’s neighbors arrived home and saw
John lying in the driveway. Police arrived shortly thereafter
and observed John lying face-down in the driveway, with blood
splatter, a leaf blower, and pieces of brick near his body.
John was pronounced dead at the scene by emergency medical
personnel.
Later that day, officers located defendant sitting inside
his vehicle in a restaurant parking lot near his home. As the
officers approached, they observed abrasions on defendant’s
hands and head and blood “spots” on his shirt. The officers
ordered defendant out of his vehicle and noticed blood on his
boots as well.
Defendant was arrested and taken to police headquarters,
where he was met by Investigator George Trillhaase and Detective
Tom Duffy for questioning. Defendant was advised of his Miranda
rights and he requested an attorney. Investigator Trillhaase
and Detective Duffy stopped the interrogation and met with their
supervisor. The decision was made to charge defendant with
John’s murder.
After approximately eighty minutes, Investigator Trillhaase
and Detective Duffy re-entered the interview room and advised
defendant that he was going to be charged with murder.
5
Defendant then asked if he could speak with the investigators,
stating “I’m gonna tell you the truth.” Defendant was re-read
his Miranda rights, which he waived both orally and in writing.
Defendant began the conversation by explaining that a few
weeks earlier a fight had occurred involving him, John, and
Steven during a visit to the hospital where their mother was
being treated at the time. When the interrogators attempted to
redirect the discussion to “how it started today” -- the day of
John’s death -- defendant responded, “Ah, well let’s not talk
about that part.” He then shifted the dialogue to weapons he
believed John kept at Anna’s house. In response to inquiries
about how John injured defendant, he stated, “Like I said, we’ll
forget about that part. He’s not a good person[,] believe me.”
Defendant then, once again, turned to the weapons in Anna’s
house:
[Inv. Trillhaase]: Tell us why, tell us why
you’re concerned about the loaded guns [at
Anna’s house].
[Defendant]: Because he keeps telling me he’s
gonna kill me.
[Inv. Trillhaase]: Ok.
[Defendant]: He’s gonna kill me.
[Inv. Trillhaase]: What happened today about
the loaded gun or did that come in play at
all?
[Defendant]: That came in play a long time
ago.
6
. . . .
[Q]2: I believe he asked you if there was [a]
gun involved today?
[Defendant]: Yes.
[Q]: How was a gun involved today?
[Defendant]: That’s, well he keeps . . .
[Q]: Did he threaten you with a gun?
[Defendant]: . . . telling me. He keeps
telling me he’s gonna kill me.
[Q]: Ok, did he tell you that today?
[Defendant]: Yes, he did.
Defendant then responded to a series of questions about
events leading up to the fight and the injuries he sustained:
[Q]: Can you tell us how you got injured?
[Defendant]: Who knows? Him biting me. He
was biting me. Yeah we had a confrontation
but he was biting me. See?
[Det. Duffy]: I see, you got there, you got
cuts on your hand. You got cut on your arm
. . .
[Defendant]: Yeah, well . . .
[Det. Duffy]: . . . hand’s all swollen.
[Defendant]: . . . biting me here. He’s a
c**t.
2 “[Q]” indicates a question from one of the two interrogators
where the transcript does not specify whether Investigator
Trillhaase or Detective Duffy is the one asking the question.
7
[Q]: Was anything used, other than your hands
and your fists?
[Defendant]: No, no.
As the interrogation went on, defendant continued to turn
to other topics and to evade answering questions directly.
[Det. Duffy]: You said you kicked him on the
way down or whatever, what, what, what other
types of blows were thrown? I mean, we see
obvious injuries, we’re trying to ask and
trying to find out how did this occur?
[Defendant]: I defended myself.
[Det. Duffy]: That’s what we’ve been asking
you.
[Defendant]: Ok.
[Det. Duffy]: What did he, what did he do
that you had to defend yourself?
[Defendant]: It don’t it don’t matter.
[Det. Duffy]: It does matter.
[Defendant]: It doesn’t matter. Hey, I’m
sorry he’s gone.
Several times throughout the interrogation defendant answered
questions with “I don’t know.” For example:
[Det. Duffy]: We do believe you. Already
told you that. That’s not even a question
that I don’t, I understand that he threatened
you before, you said he threatened you today,
what happened today? We know you had a
confrontation, he bit you, you have wounds on,
on your hands, you said you kicked him in the
head, we know that. But there’s the questions
of cutting, a question of a knife.
[Defendant]: No knife.
8
[Det. Duffy]: What about the brick? The brick
could have cut him?
[Defendant]: I don’t know. Honestly.
[Det. Duffy]: What do you mean, you don’t
know, you don’t know? You don’t know. What
was up with the brick? Did he attack you with
the brick? That’s what I’m asking.
[Defendant]: I really can’t talk about stuff
like that.
Near the end of questioning, the topic turned to
defendant’s feelings about his brother’s death. He was asked to
“just walk through it” and “do your brother right.” Defendant
responded, “I’d rather uh just see a lawyer. That’s all. Ok,
thanks.” The interview concluded with defendant saying, “Put me
down as a murderer. I’m gonna go down.”
Defendant was charged with first-degree murder, N.J.S.A.
2C:11-3(a)(1) or (2), and third-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(d).
B.
Before trial, defendant moved to suppress his statement to
police and argued that the officers did not honor his invocation
of the right to counsel. At the suppression hearing, the motion
court received testimony from Investigator Trillhaase and viewed
the videotape of defendant’s interview with Investigator
Trillhaase and Detective Duffy. The court denied defendant’s
suppression motion, and the case proceeded to trial.
9
During opening statements, the prosecutor explained to the
jury:
[Defendant] says that he had to defend
himself, but when pressed he doesn’t give
details. He avoids them. He doesn’t explain.
The detectives are asking him, you’ll see
detectives are asking him to explain what
happened that day, what happened on April 30?
And he never says --
Defense counsel moved for a mistrial, contending that the State
improperly commented on defendant’s right to remain silent. The
trial court denied the motion.
During Investigator Trillhaase’s testimony at trial, the
prosecutor asked him if defendant spoke in detail about the
events on the day John died and if defendant was given an
opportunity to “explain what happened that day.” At sidebar,
defense counsel objected, claiming that the State was, once
again, impermissibly commenting on defendant’s right to remain
silent. The trial judge sustained the objection but held that
if defendant testified, the prosecutor would be permitted to
cross-examine him on inconsistencies between his trial testimony
and statements to police.
Defendant elected to testify on his own behalf at trial and
claimed to have acted in self-defense. Defendant stated that he
and John had a volatile relationship because defendant was not
kept informed about their mother’s health. Defendant confirmed
that he went to his mother’s house on the day of John’s death.
10
He said that he intended to visit their mother because she had
just come home from a rehabilitation center. Defendant
testified that he did not expect John to be at home, but when
defendant arrived, John was in the driveway fixing a leaf
blower. According to defendant, John asked where he was going,
and defendant replied that he was going to see their mother.
Defendant testified that John said, “No you’re not,” then pushed
and hit defendant. By defendant’s account, John bit defendant
during their altercation and stabbed him with a screwdriver in
his left arm. They then both grabbed bricks from a pile and
swung them at each other.
Following defendant’s direct testimony, the trial judge
discussed with counsel the proper limits of cross-examination.
The prosecutor argued that once a person waives his or her
Miranda rights, any post-Miranda silence is subject to cross-
examination or comment. The judge allowed the prosecutor to
“use anything that [defendant] said [on direct] against him if
[it] contradicts what he said in his statement” to police. The
judge also instructed that “almost everything that [defendant]
said as to what happened on that date is attackable” but that
non-responsive answers to the police could not be raised.
Although defendant’s pretrial motion to suppress his statement
to police had been denied, defense counsel responded that the
“entire statement was essentially a very long invocation of the
11
right to remain silent” and that the State’s proposed line of
questioning was an “inferential comment on [defendant’s] right
to remain silent.”
During defendant’s cross-examination, the prosecutor
focused on details that defendant testified to on direct
examination but failed to mention to police during his post-
arrest interrogation.3
[STATE:] Let me get this straight, sir.
You’re now saying that some kind of
screwdriver was involved?
[DEFENDANT:] Yes.
[STATE:] Okay. Ever mention a screwdriver at
all in the statement that we saw yesterday?
[DEFENDANT:] No, I did not.
[STATE:] Ever?
[DEFENDANT:] No.
[STATE:] No. Did the Detectives ask you
multiple times if any weapons were used?
. . . .
[DEFENDANT:] I didn’t want to answer any
questions that had to do with that. What my
brother did to me, what I did to him, I didn’t
want to talk about that.
3 In the interest of brevity, we do not include every portion of
defendant’s cross-examination relevant to the issue in this
appeal. Instead, the excerpts provided are representative of
the dialogue between defendant and the prosecutor.
12
Despite an objection by defense counsel, the State
continued to question defendant about missing details in his
post-arrest statement.
[STATE:] Did you tell the Detectives that you
got stabbed with a screwdriver into your
muscle?
[DEFENDANT:] No. I didn’t want to talk about
that. They asked me about it. I didn’t want
to talk about it.
[STATE:] So you defended yourself against
this attack from John by a screwdriver and you
don’t want to tell the cops that?
. . . .
[STATE:] You’re saying today, three-and-a-
half years later, you don’t want to tell the
cops that you got stabbed by a screwdriver by
John?
[DEFENDANT:] I didn’t want to talk about it.
They asked me [what] other wounds I had on me
and I just didn’t want to talk about it.
. . . .
[STATE:] When they asked you, “Were any
weapons used other than your hands and fists,”
you said what?
. . . .
[DEFENDANT:] I didn’t want to talk about it.
I didn’t want to talk about what went on there,
what he did and what I did.
[STATE:] After being charged with murder, you
didn’t want to talk about it?
13
At sidebar, the court instructed the prosecutor to avoid
questions about the information defendant did not disclose to
police. The prosecutor then continued as follows:
[STATE:] So back on April 30th, you tell the
police “We just had an argument.” Right?
[DEFENDANT:] Uh-huh.
[STATE:] Today you give all kinds of details
. . . [a]bout what happened in the driveway.
[DEFENDANT:] Once again, I didn’t want to
talk about it.
[STATE:] After they charged you with murder,
you didn’t want to talk about it?
[DEFENDANT:] I didn’t want to talk about it.
. . . .
[STATE:] [During the interrogation] the
Detectives asked you what happened when you
got there, and you say, “I don’t know.” Right?
[DEFENDANT:] Yes.
[STATE:] Today you give us all kinds of detail
of what happened when you got there. Right?
[DEFENDANT:] I said I don’t know. This way
I wouldn’t have to talk about it.
After further questioning by the prosecutor, defense
counsel moved for a mistrial. The trial court denied the motion
but gave the following instruction to the jury:
A Defendant has a right to remain silent,
and no inference of guilt should be drawn from
his exercise of that right. It should be
limited to assessing the Defendant’s
credibility and that invoking his right to
14
remain silent may not be used in determining
whether he is guilty or not guilty.
So if he said something which was
contradictory in one statement as opposed to
the other, that determines -- you can use that
relative to determine [sic] his credibility.
But the fact that he exercises his right to
remain silent relative to some questions, you
can’t make the determination of his guilt or
innocence based on that. Okay?
Defense counsel did not object.
When the trial resumed five days later, defense counsel
informed the court that the instructions previously given to the
jury advised that defendant’s silence could be used for
impeachment purposes. To fix this error, defense counsel
requested a limiting instruction. The trial court issued a
clarifying instruction, stating that “a defendant has a right to
remain silent and no inference of guilt should be drawn from his
exercise of that right.” This instruction was repeated, without
objection, during the final jury charge.
The jury found defendant guilty of the lesser-included
offense of passion/provocation manslaughter, N.J.S.A. 2C:11-
4(b)(2), as well as third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d). The court merged the
convictions and imposed a nine-year term of imprisonment subject
to an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, as
well as appropriate fines and fees.
15
Defendant appealed, arguing that the prosecutor improperly
cross-examined defendant on his failure to provide details of
his self-defense claim during his post-arrest statement to
police. The Appellate Division reversed defendant’s conviction
and remanded for a new trial, determining that the prosecutor’s
questions on cross-examination were improper and violated
defendant’s right against self-incrimination. The panel found
that defendant invoked his right to remain silent by telling the
police that he did not want to talk about certain subjects and
answer certain questions. It reasoned that, accordingly, the
statements could not be used for any purpose, including
impeachment. Further, the Appellate Division found the trial
court’s instructions to the jury were fatally flawed because,
“[i]n both instructions, the judge failed to advise the jurors
that no inference of defendant’s guilt or credibility should be
drawn from the exercise of his right to remain silent.”
This Court granted the State’s petition for certification.
State v. Kucinski, 224 N.J. 282 (2016). We also granted amicus
curiae status to the Attorney General of New Jersey.
II.
The State contends that although it may not comment on a
defendant’s silence at or near the time of arrest, defendant
here did not invoke his right to remain silent because he
voluntarily waived his Miranda rights, both orally and in
16
writing, and proceeded to speak to the detectives. Relying on
this Court’s decision in State v. Tucker, 190 N.J. 183 (2007),
and holdings of the United States Supreme Court, the State
claims that “[t]he outline of the relevant precedent shows that
a defendant who speaks freely after waiving his Miranda rights
can be cross-examined if he testifies at trial inconsistently
with his prior statement.” Because defendant here was not
silent, and because he signed a waiver of his right to remain
silent, the State argues that defendant was “no longer cloaked
with the protections afforded under Miranda.” Therefore, “[t]he
detailed story defendant provided from the stand at trial was
subject to attack on the ground that when defendant spoke to
police a few hours after the murder, he had said hardly any of
it.”
Like the State, the Attorney General contends that “[t]his
case is not about silence” but is about defendant’s refusal to
speak about certain subjects while freely speaking about others
after he was read his Miranda rights and waived them. According
to the Attorney General, defendant’s decision to select the
degree of detail with which he would answer questions was not an
assertion of the right to remain silent, and by offering more
detail on the stand than during the interrogation, defendant
presented two different versions of the event.
17
The Attorney General argues that, by telling the officer “I
don’t know” or “I don’t want to talk about that” in response to
precise questions, defendant gave a statement that was “vastly
different” from his testimony on the stand, in which he provided
very specific details about the events that took place leading
up to John’s death. If prosecutors are not permitted to
question a defendant about omissions and inconsistencies between
a post-Miranda statement and in-court testimony, the Attorney
General asserts, “a defendant has the opportunity to manipulate
his or her trial testimony with recently fabricated details
based on gaps in his or her previous statements.” The Attorney
General also maintains that any limiting instruction issued to
the jury about defendant’s post-arrest statement was
unnecessary.
Defendant asserts that “[a] reasonable interpretation of
the Miranda warnings is that one has the right to say nothing at
all, and should the right to speak be exercised, it does not
carry with it the affirmative obligation to come forth with the
complete and precise exculpatory version one intends to later
rely on.” Therefore, defendant’s waiver did not “impose some
affirmative obligation on him to speak, much less to speak on
all matters of interest to the State and, therefore, he cannot
be impugned for his failure to do so.” Defendant argues that
the right to remain silent is rendered “illusory” if the State
18
is permitted to cross-examine a defendant who first waives his
Miranda rights and then later invokes his right to remain silent
by refusing to respond to certain questions. Finally, defendant
claims that he was permitted to, and did, invoke his right to
remain silent as to particular questions.
III.
We begin by noting that the Fifth Amendment of the United
States Constitution guarantees that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. The federal protection against compelled
self-incrimination must be “scrupulously honored.” Michigan v.
Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d
313, 321 (1975) (quoting Miranda, supra, 384 U.S. at 479, 86 S.
Ct. at 1630, 16 L. Ed. 2d at 726); see also State v. Kennedy, 97
N.J. 278, 288 (1984).
Although New Jersey’s privilege against self-incrimination
is not enshrined in our State Constitution, “the privilege
itself is firmly established as part of the common law of New
Jersey and has been incorporated into our Rules of Evidence.”
State v. Hartley, 103 N.J. 252, 260 (1986) (quoting In re
Martin, 90 N.J. 295, 331 (1982)); N.J.R.E. 501, 502, 503.
Furthermore, “[o]ur state-law privilege against self-
incrimination offers broader protection than its federal
19
counterpart under the Fifth Amendment.” State v. Muhammad, 182
N.J. 551, 568 (2005).
A.
The United States Supreme Court first considered whether a
defendant’s pretrial silence could be used to impeach his
credibility on cross-examination at trial in United States v.
Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975).
There, the defendant was placed under arrest, given Miranda
warnings, and remained silent. Id. at 174, 95 S. Ct. at 2135,
45 L. Ed. 2d at 103. During his testimony at trial, however,
the defendant provided a detailed alibi for his whereabouts
during the commission of the crime at issue. Ibid. Relying on
evidentiary rather than constitutional grounds, the Court found
that the risk of unfair prejudice by admitting it into evidence
outweighed the probative value of the defendant’s pretrial
silence, id. at 180, 95 S. Ct. at 2138, 45 L. Ed. 2d at 107, and
that “his failure to offer an explanation during . . . custodial
interrogation can as easily be taken to indicate reliance on the
right to remain silent as to support an inference that the
explanatory testimony was a later fabrication,” id. at 177, 95
S. Ct. at 2137, 45 L. Ed. 2d at 105.
A year later, this Court considered a similar question in
State v. Deatore and held that, “whether or not the defendant
received his Miranda warnings,” 70 N.J. 100, 117 n.10 (1976), a
20
defendant who remains silent “at or near the time of his arrest”
cannot be cross-examined about that silence if he subsequently
testifies to an exculpatory version of events at trial, id. at
108-09.
The United States Supreme Court reached a similar
conclusion, this time on constitutional grounds, in Doyle v.
Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The
Court concluded that “it would be fundamentally unfair and a
deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently
offered at trial.” Id. at 618, 96 S. Ct. at 2245, 49 L. Ed. 2d
at 98.
We incorporated Doyle’s reasoning into our decision in
State v. Lyle, 73 N.J. 403 (1977). In Lyle, supra, the victim
was shot after he entered the defendant’s store. 73 N.J. at
405. When investigating officers arrived at the scene asking
for “Henry,” the defendant responded, “Yes, I’m Henry. I shot
him.” Id. at 406. The officers then administered Miranda
warnings, after which the defendant made no response. Ibid. At
trial, the defendant testified that he acted in self-defense,
stating that the victim tried to attack him with a screwdriver.
Id. at 405, 408. The prosecutor pointed out, in his cross-
examination of the defendant and in summation, that the
defendant failed to mention a screwdriver to officers who first
21
responded to the scene. Id. at 408-09. Highlighting Doyle and
Deatore, we made clear that “the State’s use of a defendant’s
post-arrest silence for purposes of impeaching his exculpatory
defense violates due process” and is “improper irrespective of
whether [Miranda] warnings are given.” Id. at 409-10 (citing
Deatore, supra, 70 N.J. at 117 n.10).
This Court applied the general principles of Lyle and
Deatore in our decision in Muhammad. In that case, a woman was
walking home from her cousin’s house through an area in Paterson
known for prostitution. Muhammad, supra, 182 N.J. at 559. As
she walked, the defendant approached the woman in a vehicle,
identified himself as a Paterson police officer, stated that she
was under arrest for prostitution, and ordered her into the back
seat of his car. Ibid. At the time of the offense, the
defendant was a fifteen-year veteran of the City of Passaic
police force but had been terminated from that job a month
earlier. Id. at 559 n.1. The defendant drove the victim to a
dark, dead-end street and sexually assaulted her. Id. at 559.
Thereafter, the woman insisted that she be driven to the local
jail, and, upon their arrival at Paterson police headquarters,
the defendant told the sergeant on duty that the victim was
brought in because she had harassed the defendant’s siblings.
Id. at 560. The victim interrupted, accused the defendant of
lying, told the sergeant she had been raped, and produced the
22
condom the defendant used as proof. Ibid. The defendant became
visibly nervous and asked if he could go home. Id. at 561. He
was detained at the police station, however, and eventually
placed under arrest. Ibid.
At trial, defense counsel asserted that the victim was a
prostitute and the sex was consensual. Id. at 562. In opening
and closing arguments and during questioning of witnesses, the
prosecutor “repeatedly referenced [the] defendant’s failure to
make any mention at police headquarters of a consensual
encounter with [the victim] or that she was a prostitute.”
Ibid.
We held in Muhammad that the State’s questioning violated
the defendant’s right against self-incrimination. Id. at 573-
74. Explaining that it was of no consequence that the defendant
initially presented the story of harassment to officers before
falling silent, we said, “A suspect who begins to speak to the
police while in custody, during interrogation, or ‘at or near’
the time of his arrest does not waive his right against self-
incrimination when he falls silent.” Id. at 568. “In other
words, by speaking with the police, a suspect does not waive his
right to invoke the privilege and remain silent at some later
point.” Ibid.
B.
23
Also germane to the issue before this Court is whether a
defendant may be cross-examined on factual inconsistencies
between his testimony at trial and his pretrial statement. Both
federal and New Jersey jurisprudence establish guidelines for
cross-examination of a defendant on such inconsistencies. In
Anderson v. Charles, the United States Supreme Court found that
the holding in Doyle -- that a prosecutor cannot cross-examine a
defendant on his post-arrest silence after being given Miranda
warnings -- “does not apply to cross-examination that merely
inquires into prior inconsistent statements . . . because a
defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent.” 447 U.S. 404,
408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 226 (1980).
Importantly, the Court went on to explain that, while “two
inconsistent descriptions of events may be said to involve
‘silence’ insofar as [one] omits facts included in the other
version[,] . . . Doyle does not require any such formalistic
understanding of ‘silence,’ and we find no reason to adopt such
a view in this case.” Id. at 409, 100 S. Ct. at 2182, 65 L. Ed.
2d at 227.
Following Anderson, this Court decided Tucker. There, the
defendant, Tucker, called 9-1-1 and reported that he had
returned home to discover his mother’s dead body. Tucker,
supra, 190 N.J. at 185. Upon questioning by the responding
24
officer, Tucker stated that he last saw his mother two days
earlier when he drove her home from the grocery store, before
leaving to spend the weekend with his girlfriend. Ibid. The
police then transported Tucker to police headquarters and
administered Miranda warnings. Ibid. Around that time, Tucker
reiterated the story about how he last saw his mother when he
brought her home from the grocery store. Id. at 186.
Subsequent investigation revealed that Tucker’s mother made
a check out to cash in the amount of $3000, and that she cashed
a check at the local bank on the day that Tucker claimed to have
brought her to the grocery store. Ibid. In a second interview
with the police, Tucker was again read his Miranda rights.
Ibid. Tucker then admitted that he took his mother to the bank,
but stated that he waited for her in the car. Ibid.
Surveillance tapes from the bank revealed that Tucker went
inside the bank with his mother. Ibid.
At trial, the State called attention to those
inconsistencies during its direct examination of officers who
questioned Tucker, and in its opening and closing statements.
Id. at 187. Tucker argued that “under established law, facts
omitted from a statement are the same as the exercise of the
right to remain silent, and therefore, the omissions are not
admissible for any purpose.” Id. at 188. We disagreed. Id. at
189.
25
We determined that the prosecutor’s use of inconsistencies
between a pretrial statement and the defendant’s testimony --
the situation in Anderson -- is comparable to highlighting
inconsistencies in several statements given prior to trial --
the situation in Tucker -- because there is “no meaningful
distinction between the two situations that would justify a
different result.” Id. at 189-90. We also distinguished Tucker
from Muhammad, in that the defendant in Tucker did not remain
silent but freely related different stories to the police. Id.
at 190. Thus, we held that “it is not an infringement of a
defendant’s right to remain silent for the State to point out
differences in the defendant’s testimony at trial and his or her
statements that were freely given.” Id. at 189.
IV.
A.
We must now apply state and federal precedent to the issue
before the Court: whether defendant invoked his right to remain
silent by refusing to answer certain questions posed by police;
and, if so, whether the prosecutor improperly commented on
defendant’s silence by cross-examining him about details to
which he testified on direct examination but omitted from his
account given to police.
This Court has a strong tradition of protecting the right
to remain silent. See, e.g., Deatore, supra, 70 N.J. at 115-17.
26
When a defendant invokes his or her right to remain silent, the
interrogation must cease, at least until some time has lapsed
and the defendant is reread his Miranda rights. Hartley, supra,
103 N.J. at 266-67; see also Mosley, supra, 423 U.S. at 104-105,
96 S. Ct. at 327, 46 L. Ed. 2d at 322. That being said, even if
a defendant is successful in invoking his or her right to remain
silent about a particular subject, this right is waived if the
defendant discusses, of his or her own volition, that very topic
just moments later. Miranda, supra, 384 U.S. at 478, 86 S. Ct.
at 1630, 16 L. Ed. 2d at 726 (“Any statement given freely and
voluntarily without any compelling influences is, of course,
admissible in evidence.”); see also Bradley v. Meachum, 918 F.2d
338, 343 (2d Cir. 1990) (“[The defendant] cannot be said to have
invoked his fifth amendment right regarding his willingness to
discuss his involvement in the crime because, in the same
breath, he denied any involvement.”), cert. denied, 501 U.S.
1221, 111 S. Ct. 2835, 115 L. Ed. 2d 1004 (1991); United States
v. Lorenzo, 570 F.2d 294, 298 (9th Cir. 1978) (“[I]n light of
the willingness with which [the defendant] began to talk to the
officers - and continued to do so after his failure to respond
to a single question - he cannot be said to have invoked his
right to remain silent.”).
First, we hold that defendant waived his right to remain
silent. Defendant was cognizant of his Miranda rights and
27
clearly and unambiguously invoked his right to counsel when
police originally administered Miranda warnings and again at the
end of the interview. However, after first invoking his right
to counsel, it was defendant who asked to speak with officers so
that he could “tell [them] the truth.”
After acknowledging that he had fought with his brother,
defendant avoided questions by saying “[a]h, let’s not talk
about that part,” “we’ll forget about that part,” “it doesn’t
matter,” and “I don’t remember.” By making those remarks at
specific moments during the interrogation, defendant exhibited
hesitation to provide police with some details about John’s
death. Nevertheless, considered in context, defendant’s refusal
to answer certain questions was not an attempt to end the
dialogue, but rather was “part of an ongoing stream of speech,”
which included information about the altercation and defendant’s
family disputes. Meachum, supra, 918 F.2d at 342.
Defendant discussed his conflicts with his brothers, his
concern that they would kill him, and the guns in Anna’s house.
Most importantly, defendant voluntarily provided details about
the altercation that led to John’s death -- the very subject
about which he previously said, “let’s not talk about that
part.” For example, defendant explained that John threatened to
kill him when he got to Anna’s house, that they “had a
confrontation,” and that his injuries resulted from John’s
28
biting him. In other words, defendant told investigators about
his recollection of the altercation with John -- he thus spoke
on that subject.
Because we find that defendant waived his right to remain
silent, cross-examination regarding facts to which he testified
at trial, but omitted in his statement to police, was proper.
See United States v. Fambro, 526 F.3d 836, 842 (5th Cir.) (“A
defendant cannot have it both ways. If he talks, what he says
or omits is to be judged on its merits or[] demerits, and not on
some artificial standard that only the part that helps him can
be later referred to.” (quoting United States v. Goldman, 563
F.2d 501, 503 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98
S. Ct. 1245, 55 L. Ed. 2d 768 (1978))), cert. denied, 555 U.S.
1050, 129 S. Ct. 625, 172 L. Ed. 2d 617 (2008); United States v.
Donnat, 311 F.3d 99, 104-05 (1st Cir. 2002) (“Where the
defendant elects to speak to the police and gives statements
that he later contradicts at trial, a prosecutor’s inquiry into
the defendant’s failure to give the exculpatory account before
trial does not draw a negative inference from defendant’s
decision to remain silent but rather from his prior inconsistent
statement.” (emphasis added)); Agnellino v. New Jersey, 493 F.2d
714, 730 (3d Cir. 1974) (Weis, J., concurring) (“A defendant who
chooses to answer questions with half truths cannot claim
constitutional protection to remain silent as to the other half.
29
A complete answer to a question may be as inconsistent with a
partial reply as one completely different in detail.” (emphasis
added)). If a defendant elects to speak to the police and
offers an account of what happened, then he has not remained
silent -- he has spoken. Tucker, supra, 190 N.J. at 189 (“[I]t
is not an infringement of a defendant’s right to remain silent
for the State to point out differences in the defendant’s
testimony at trial and his or her statements that were freely
given.” (emphasis added)); see Agnellino, supra, 493 F.2d at 730
(Weis, J., concurring).
During interrogation, defendant claimed his injuries were
caused by John biting him. Interrogators followed up by asking
if “anything [was] used, other than [his] hands and [] fists,”
to which defendant responded, “No. no.” Defendant’s story
changed during his direct examination when he claimed John
stabbed him in the arm with a screwdriver and he was forced to
defend himself. Therefore, the State’s cross-examination sought
to highlight the inconsistency between defendant’s statement to
police during interrogation and his testimony on direct
examination at trial. This inconsistency is a permissible area
for cross-examination.
Finally, as a result of our conclusion that defendant did
not invoke his right to remain silent, we find that any error in
30
the trial court’s instruction to the jury, to which defendant
did not object, was harmless. R. 2:10-2.
V.
For the reasons set forth above, the judgment of the
Appellate Division is reversed, and defendant’s conviction is
reinstated.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.
31