STATE OF NEW JERSEY v. CINDY KEOGH (19-05-0288, SOMERSET COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1355-21
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CINDY KEOGH and
DAVID KEOGH,
Defendants-Respondents,
and
RYAN D. KEOGH,
Defendant.
__________________________
Submitted May 23, 2022 – Decided June 28, 2022
Before Judges Messano, Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 19-05-
0288.
Annmarie Taggart, Acting Somerset County
Prosecutor, attorney for appellant (Paul H. Heinzel,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Brynn Giannullo, attorney for respondent Cindy
Keogh.
Mazraani & Liguori, LLP, attorneys for respondent
David Keogh (Jeffrey S. Farmer, on the brief).
PER CURIAM
This is the second time we have granted the State of New Jersey leave to
appeal from an interlocutory order entered by the Law Division in this
prosecution surrounding the January 9, 2019 shooting death of Terrence
Coulanges. In our prior decision, we reversed the court's order denying the
State's motion to sever the murder charge against defendant Ryan Keogh, from
the charges brought against his parents, defendants Cindy and David Keogh.
State v. Keogh, No. A-1623-20 (App. Div. July 22, 2021) (slip op. at 2). The
charges against Cindy and David 1 — hindering apprehension, endangering an
injured victim, and multiple counts of false swearing — are premised on their
alleged conduct and statements they made to law enforcement following the
1
Because all defendants share the same last name, we refer to them by their
first name throughout this opinion to avoid confusion. We intend no disrespect
by this informality.
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shooting at the family's Bound Brook residence. We detailed the State's
contentions in our prior opinion and need not repeat them here. Id. at 3–15.
Contemporaneous with our consideration of the State's prior appeal, the
Law Division judge conducted evidentiary hearings pursuant to N.J.R.E. 104(c)
on the State's motion to admit defendants' recorded statements to law
enforcement officers made on the evening of the shooting. The judge concluded
the State could introduce Ryan's statements, but he suppressed statements made
by Cindy and David, reasoning they "were made during a custodial interrogation
without Miranda2 warnings having been issued." We granted the State leave to
appeal from the judge's August 20, 2021 order suppressing Cindy's and David's
statements, and the judge's November 30, 2021 order denying the State's motion
for reconsideration.
I.
We summarize the evidence adduced by the State at the multi-day
N.J.R.E. 104(c) hearing, particularly as it pertains to the statements made by
Cindy and David.
At approximately 7:36 p.m., Officer Philip Gatti of the Bound Brook
Police Department was dispatched to the Keoghs' home on a report of "shots
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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fired" at an intruder on the property with one person injured. Arriving in
minutes, he saw Cindy, who had called 9-1-1, standing at the edge of the
driveway. Cindy said a family friend who had lived with the Keoghs at a point
in the past was shot outside the carriage house behind the main residence. Cindy
said her husband and son were still inside the home. Gatti ordered Cindy to call
David and Ryan out of the house so police could investigate and secure the
scene. Cindy made the call on her cell phone; David and Ryan emerged and
were directed to keep their hands raised in the air as they walked to the end of
the driveway, where police patted down both men.
South Bound Brook Officer Jason Kreideweis testified as the men walked
to the end of the driveway, Ryan stated, without being questioned, "there was
possibly someone still shot in the backyard on the porch and may still be in
possession [of] a handgun." The statement prompted several officers to draw
their weapons as they proceeded to the rear of the main house. Gatti soon
learned Ryan had shot Coulanges. Officers approached the carriage house and
saw Coulanges lying on the porch. They secured the handgun that was nearby
and placed handcuffs on Coulanges, who was non-responsive to their
resuscitation efforts.
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Middlesex Police Officer Scott Mulford arrived at the Keogh home at 7:42
p.m. and was "told to stand by with [Ryan and his parents]." Mulford said "at
no point did [he] think [he] had to supervise them." Bound Brook Police
Lieutenant Richard Colombaroni, the ranking officer at the scene, explained
things were "still very much evolving" as he arrived, "[s]o [he] just asked that
an officer stand by with [the Keoghs]. Especially, at that point believing that
someone had tried to enter their home. Make sure they are okay. Make sure
they are safe and secure." Colombaroni said only Coulanges was "in custody."
Mulford engaged in small talk with the Keoghs, but "when [he] realized
what was going on at the scene," he asked them to please refrain from talking
among themselves. Although testifying he never ordered the Keoghs not to
"speak to each other," Mulford's report stated, "It should be noted that I had to
advise all parties to remain silent and not to converse with each other multiple
times." Mulford said Cindy asked "once or twice if she could go in the house
[to] get a coat," but he told her she could not enter the house because it was an
active crime scene. Mulford said no one otherwise asked to leave the driveway.
The authorities promptly applied for search warrants for the main house,
the carriage house, and three vehicles on the premises used by defendants.
Police transported the Keoghs to headquarters in separate police vehicles to be
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interviewed and provide statements, since the interviews could not be conducted
in the residence, and defendants were not permitted to use their cars. All
defendants arrived at the station within minutes of leaving the Keoghs' home.
Kreideweis testified Cindy "actually [gave him] directions . . . to get out of the
section of town that [defendants] live[d] in and back to Bound Brook Police
Department."
Detective Randy Sidorski of the Somerset County Prosecutor's Office
Major Crimes Unit interviewed each defendant in the company of other
detectives. Defendants were separated from each other before Sidorski arrived,
with Cindy in the lobby, Ryan in an interview room, and David in a secondary
interview room. Sidorski testified that separation of witnesses is "commonplace
in any investigation . . . [because i]t maintains the integrity of the investigation."
Sidorski knew Coulanges was fatally shot, and he had "no reason to doubt . . .
at that point" all preliminary accounts indicating Ryan shot Coulanges in self-
defense.
Sidorski first recorded Cindy's statement after escorting her from the
lobby to the interview room and moving David to the lobby. Sidorski explained,
"Typically, in any investigation [police] would start with the 9-1-1 caller in
terms of interview" sequence. Sidorski testified Cindy agreed to answer his
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questions, was cooperative, coherent, and had no trouble communicating.
Cindy's interview lasted approximately twenty-five minutes, and thereafter,
another detective ushered Cindy back to the lobby and brought David in for his
interview.
Sidorski testified he wanted to speak to David to "ascertain his
involvement, especially after Cindy said [during her interview] that she called
David at some point." Sidorski regarded David as "[a] witness" and did not
know if he was at the residence during the shooting. Sidorski said David agreed
to answer all his questions, and the interview was "[c]onversational." David's
interview began at 9:46 p.m. and ended eighteen minutes later at 10:04 p.m.
Ryan was separately interviewed last after he was given Miranda
warnings. The judge concluded Ryan "made [his] statements knowingly,
intelligently and voluntarily and there was no police coercion . . . during the
interview. . . . The statements made by Ryan are plainly admissible."
After Cindy and David provided their statements, Colombaroni met them
in the lobby, which he described as a space in the municipal building that the
Police Department "cohabitated" with other departments. The lobby was open
to the public during business hours but secured after hours with access li mited
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by the police dispatcher who could "buzz" people in and out. Cindy and David
were unrestrained, sitting outside the dispatcher's window.
Someone told Colombaroni "the Keoghs were inquiring of the status of
what was occurring with Ryan[,] and they were concerned." Colombaroni spoke
with them in the lobby. Cindy and David "asked what was going on with Ryan,"
and Colombaroni said he "knew nothing further at th[at] point other than the
investigation was active." Because their interviews were over, Colombaroni
told Cindy and David "if they would like to leave, they were free to leave." They
wished to stay, however, pending further information about their son.
Police were executing the search warrants for the Keogh property before
Ryan's interview was completed at approximately 2:00 a.m. Colombaroni
escorted all three defendants back to their home to collect some things, but since
the scene was still being processed, defendants were unable to remain in their
home.
After further investigation, which we detailed in our prior opinion, see
Keough, slip op. at 4–8, 13–15, and more than one month later, on February 13,
2019, Ryan was charged with Coulanges' murder. Cindy and David were both
charged the following day. Defendants did not call any witnesses nor testify at
the hearing.
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In the written decision that accompanied his August 20, 2021 order
suppressing Cindy's and David's statements, the judge determined they "were in
custody for the purposes of Miranda." The judge found the couple "never left
the line of sight of the officers and were subject to numerous commands . . . that
left them no other option but to comply with these commands." The judge
further found defendants were driven to police headquarters, were unable to
"drive their own vehicles or report to the police station at another time." He
noted although "the Keoghs were free to leave after they gave their statements[,]
. . . they were still subject to further police supervision because the police were
executing a search warrant on their residence[,] and they could not enter their
home." The judge rejected the State's contention that Miranda warnings were
not required because Cindy and David were "treated as witnesses and not
suspects," observing, "that is not the test. The test is whether a reasonable
person, in the defendant's position, would feel free to leave."
Additionally, the judge found Cindy and David "were subject to a
custodial interrogation for Miranda purposes." The judge said, "The test [wa]s
whether the police used actions or words that the police should have known were
reasonably likely to elicit an incriminating response from the suspect." He
concluded "the police should have known that questioning an individual about
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a dead body that was found on their property with none of the residents injured[]
could likely elicit an incriminating response."
In denying the State's motion for reconsideration, the judge's written
opinion accompanying the order said he "remain[ed] convinced that Cindy and
David were in custody because the totality of the circumstances show that a
reasonable person in their position would not feel free to leave. . . . The police
conduct in this case was equivalent to a formal arrest." Regarding whether
Cindy's and David's statements were the product of "custodial interrogation,"
the judge reasoned, "Since the police asked questions about the crime and knew
that at least one of the Keoghs was involved, they should have [M]irandized
Cindy . . . and David." He found that questioning Cindy and David in their
driveway and at the police station, i.e., "at different locations," increased the
investigators' "expectation of receiving an incriminating response."
II.
Before us, the State reiterates the arguments it made before the Law
Division judge. It contends Cindy and David were neither in custody nor
interrogated and, therefore, Miranda did not apply. Additionally, the State
argues that Miranda cannot be applied "to suppress new crimes committed
during police interviews." Defendants counter by arguing the judge properly
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assessed the facts, which were largely undisputed, and correctly applied Miranda
to suppress the statements investigators secured without providing the requisite
warnings.
We agree with the State that Cindy and David were not subjected to
custodial interrogation. We therefore reverse.
"[O]ur review requires that we 'defer to the factual findings of the trial
court . . . supported by sufficient evidence in the record,' because a trial court's
decision is influenced by the opportunity to hear and see the witnesses." State
v. Gonzalez, 249 N.J. 612, 628 (2022) (quoting State v. Hubbard, 222 N.J. 249,
262 (2015)). "When, as here, we consider a ruling that applies legal principles
to the factual findings of the trial court, we defer to those findings but review de
novo the application of those principles to the factual findings." State v. Hinton,
216 N.J. 211, 228 (2013) (citing State v. Harris, 181 N.J. 391, 416 (2004)); see
also State v. A.M., 237 N.J. 384, 396 (2019) ("An appellate court owes no
deference, however, to 'conclusions of law made by lower courts in suppression
decisions.'" (quoting State v. Boone, 232 N.J. 417, 426 (2017))).
It is axiomatic that "the protections provided by Miranda are only invoked
when a person is both in custody and subjected to police interrogation."
Hubbard, 222 N.J. at 266 (citing State v. P.Z., 152 N.J. 86, 102 (1997)).
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"Essentially, 'Miranda turns on the potentially inquisitorial nature of police
questioning and the inherent psychological pressure on a suspect in custody.'"
Ibid. (quoting P.Z., 152 N.J. at 102).
The determination of whether a person is in custody is "fact-sensitive,"
requiring a "'case-by-case approach, in which the totality of the circumstances
must be examined.'" State v. O'Neal, 190 N.J. 601, 622 (2007) (quoting State v.
Godfrey, 131 N.J. Super. 168, 175–77 (App. Div. 1974)); see also State v. Stott,
171 N.J. 343, 364 (2002) ("Whether a suspect has been placed in custody is fact-
sensitive and sometimes not easily discernible."). "[C]ustody in the Miranda
sense does not necessitate a formal arrest, nor does it require physical restraint
in a police station, nor the application of handcuffs, and may occur in a suspect's
home or a public place other than a police station." Hubbard, 222 N.J. at 266
(alteration in original) (quoting P.Z., 152 N.J. at 103).
"The critical determinant of custody is whether there has been a
significant deprivation of the suspect's freedom of action based on the objective
circumstances, including the time and place of the interrogation, the status of
the interrogator, the status of the suspect, and other such factors." Id. at 266–67
(quoting P.Z., 152 N.J. at 103). However, "[i]f the questioning is simply part of
an investigation and is not targeted at the individual because she or he is a
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suspect, the rights provided by Miranda are not implicated." Id. at 266
(alteration in original) (emphasis added) (quoting State v. Timmendequas, 161
N.J. 515, 614–15 (1999)).
Here, in determining Cindy and David were in "custody," the judge gave
unwarranted legal significance to the interaction between defendants and police
at the scene of the homicide. It is well-recognized that "[t]he rights set forth in
Miranda are not implicated 'when the detention and questioning is part of an
investigatory procedure rather than a custodial interrogation.'" State v. Smith,
307 N.J. Super. 1, 9 (App. Div. 1997) (emphasis added) (quoting State v.
Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)). The undisputed testimony at
the hearing was that the situation at defendants' home was "dynamic," with
police trying to discern exactly what happened and to ensure the Keoghs' safety.
See, e.g., State v. Smith, 374 N.J. Super. 425, 434–36 (App. Div. 2005) (holding
"on-the-scene questioning" by officers responding to a domestic violence call
was "not custodial interrogation" requiring Miranda warnings).
The judge gave similar undue weight to the fact that Cindy and David
were separated for the drive to, and while at, police headquarters. In State v.
Purnell, we rejected the defendant's claim of ineffective assistance of trial
counsel for failing to move to suppress a statement the defendant made to police
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shortly after the murder victim was found in the defendant's backyard. 310 N.J.
Super. 407, 420–22 (App. Div. 1998), rev'd on other grnds, 161 N.J. 44 (1999).
The "[d]efendant, his fiancée, and their children were taken to headquarters to
give formal statements after defendant gave a preliminary and clearly voluntary
oral statement to the investigating detectives at his home." Id. at 421–22. In
concluding trial counsel was not ineffective for failing to file a meritless motion
to suppress, we said: "The fact that [the defendant] and his fiancée were
separated at headquarters, presumably so that they could not confer before
giving their statements, did not mean that defendant was in custody. He was at
headquarters only for a short period and then was permitted to leave." Id. at
422.
We note that here, Cindy and David were affirmatively told they were free
to leave after providing their statements, but both chose to stay until Ryan had
completed his statement. And, while such assurances by police that one is free
to leave are not necessarily dispositive of whether an interrogee is in "custody,"
see, e.g., Godfrey, 131 N.J. Super. 175–76, that Cindy, David and Ryan all left
the stationhouse that night is important when considering the totality of
circumstances. See State v. McLaughlin, 310 N.J. Super. 242, 250 (App. Div.
1998) (concluding the defendant was not in custody by noting among other
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factors his ability to leave after each day of interrogation by investigators and
return to his motel room); see also Pierson, 223 N.J. Super. at 67 ("The
determinative consideration is whether a reasonable innocent person in such
circumstances would conclude that after brief questioning he or she would or
would not be free to leave." (citing United States v. Booth, 669 F.2d 1231, 1235
(9th Cir. 1981))). Investigators did not arrest Ryan, Cindy, and David until more
than one month later and only after further investigation provided the necessary
probable cause.
Lastly, by noting defendants were unable to return home because their
cars and home were subject to the simultaneous execution of search warrants,
the judge mistakenly "placed too much emphasis on circumstances that the
officer[s] neither controlled or exploited." Smith, 374 N.J. Super. at 436.
Police were investigating a homicide that occurred only hours earlier at the
property, and it is obvious that possible tampering or contamination of evidence
required security of the site and the vehicles. Considering all the attendant
circumstances, Cindy and David were not in custody when they provided their
statements to Sidorski.
Even if we are mistaken in this regard, the judge erred in determining the
statements were the product of custodial "interrogation." "[M]ere investigative
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questioning directed at an individual who is not a suspect does not implicate
Miranda." Hubbard, 222 N.J. at 271 (citing Timmendequas, 161 N.J. at 614–
15); see also P.Z., 152 N.J. at 102 ("Miranda turns on the potentially inquisitorial
nature of police questioning and the inherent psychological pressure on a suspect
in custody." (emphasis added) (citing Miranda, 384 U.S. at 445–58)). Video
recordings of the actual statements made by Cindy and David show the
interviews were clearly conversational, non-confrontational and investigative in
nature. The judge did not find otherwise.
Instead, the judge seemingly focused on that branch of precedent dealing
not with express questioning by police, but rather the "functional equivalent of
interrogation." In re A.A., 240 N.J. 341, 352 (quoting Rhode Island v. Innis,
446 U.S. 291, 300–01 (1980)). In that regard, "interrogation [for purposes of
Miranda] refers to 'any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.'" Id. at
353 (quoting Innis, 446 U.S. at 301). Here, the judge concluded "the police
should have known that questioning an individual about a dead body that was
found on their property with none of the residents injured, could likely elicit an
incriminating response."
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However, nothing in this record suggests the investigators anticipated
their questioning was "reasonably likely to elicit" facts that could incriminate
Cindy or David in the homicide police were investigating. In fact, the statements
Cindy and David provided never did. The judge appears to have
misapprehended the thrust of Innis and our Court's adoption of its principles.
In sum, we agree with the State that Cindy and David were not subjected
to custodial interrogation, and it was legal error for the judge to suppress the
statements obtained from them by investigators on the night of the homicide.
Given his erroneous conclusion, the judge did not address whether the State
demonstrated beyond a reasonable doubt the statements given by Cindy and
David were voluntarily made and not the product of having their wills
overborne. See, e.g., State v. L.H., 239 N.J. 22, 27 (2019) ("To ensure that law
enforcement officers turn square corners, New Jersey's jurisprudence requires
that the State 'prove the voluntariness of a [statement to law enforcement]
beyond a reasonable doubt.'" (quoting State v. Galloway, 133 N.J. 631, 654
(1993))). We opt to exercise original jurisdiction pursuant to Rule 2:10-5 and
conclude on the record presented, the State met its burden of proof.
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As a result of our conclusions, we need not address the State's novel
alternative argument that Miranda does not apply to "crimes committed during
police interview."
Reversed and remanded to the trial court for further proceedings. We do
not retain jurisdiction.
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