STATE OF NEW JERSEY VS. TERREL MANN(08-09-0837, 11-04-0359 AND 12-03-0271, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4091-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERREL MANN a/k/a TERRELL
MANN and TYRELL MANN,
Defendant-Appellant.
________________________________
Argued May 8, 2017 – Decided May 26, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment Nos.
08-09-0837, 11-04-0359 and 12-03-0271.
Margaret McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. McLane, of counsel and on the briefs).
Timothy F. Trainor, Assistant Prosecutor,
argued the cause for respondent (Angelo J.
Onofri, Mercer County Prosecutor, attorney;
Mr. Trainor, of counsel and on the brief).
PER CURIAM
Defendant Terrel Mann, who pled guilty to second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), appeals the
trial court's denial of his motion to suppress incriminating
statements he provided to police after witnessing the fatal
shooting of his brother by third parties. We affirm.
I.
The record from the trial court's suppression hearing
presents the following salient chronology of events.
A.
On June 16, 2011, defendant's brother was shot in the neck
by an unidentified group of assailants in the backyard of a
residence in Trenton. Defendant was present at the scene and saw
his brother fall to the ground after the gunshots hit him.
Defendant removed his shirt to apply pressure to his brother's
gunshot wound, and dragged his brother to the front of the
residence. The brother ultimately died from the gunshot wounds.
Several Trenton police officers arrived at the scene at about
1:30 p.m. The first to arrive was Officer Tara Dzurkoc. According
to Officer Dzurkoc's testimony at the suppression hearing, when
she arrived, she saw "a black male laying on the ground face up
and a woman . . . holding a bloody white t-shirt to his neck."
The victim was in front of a home on that street, "on the sidewalk
area[.]" Dzurkoc recalled that there were "a ton of people"
gathered around the scene.
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Dzurkoc testified that, while waiting for an ambulance, she
noticed defendant in the crowd. Defendant "stood out" to her
because "he had no shirt on, he had gray shorts on, and he was
covered in blood."
Dzurkoc further testified that defendant, who was "very
upset," said, "I saw who did it, and they're going to get it."
She observed that defendant was "pacing in the street" and
"cursing." Dzurkoc testified that she "attempted" to calm him
down, but defendant was "just kind of blowing [her] off[.]"
Defendant did not ask for medical treatment, nor did anyone meet
with him "to determine if he was in shock[.]"
According to Dzurkoc, she asked defendant to "stay to the
side" so she could "keep an eye on him because a detective would
want to talk to him." Dzurkoc did not stay with defendant. Nor
was defendant put in handcuffs or placed under arrest.
Dzurkoc testified that, at that point, she "felt bad for him
and he was just a witness." She "didn't tell him to stay
specifically or to leave." According to Dzurkoc, defendant could
have left "if he wanted to[,]" and he was "detained by him just
standing where I knew he was until a detective came."
Once another detective arrived, that detective spoke to
defendant and transported him to the police station in a police
vehicle. Defendant sat without handcuffs in the backseat of the
3 A-4091-14T3
vehicle with his girlfriend, Deanna Mott, whom he wanted to come
with him to the station. Dzurkoc testified that such a situation
is "[d]efinitely not" how police customarily transport someone
"under arrest or in custody[.]" In such instances, the suspect
normally would be handcuffed and searched.
Another Trenton Police Officer, Yusaf Addar, testified that,
when he arrived at the scene, a detective called him over and told
him that there was "a witness that needed to be transported to
[police] headquarters." Addar recalled that defendant and his
girlfriend were already in the police vehicle, so Addar drove them
to the station. According to Addar, both defendant and his
girlfriend were "a little agitated" because "they wanted to know
what was going on with the victim at the time." Defendant was
not, however, "yelling or screaming or acting out like he was
being violent."
Addar testified that defendant did not ask at any time to get
out of the car, nor was he handcuffed. Mott also had her cellphone
with her while in the vehicle. According to Addar, the trip from
the scene to the station took "[m]aybe two minutes if that."
When they arrived at the station, Addar took defendant and
Mott "through the back entrance where police officers enter" and
into what is known as the robbery section of the station, an area
where police only bring "witnesses or suspects." Addar waited
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with them for ten or twenty minutes, because "the area they were
in they're really not supposed to be back there by themselves
unless they're in the company of a detective or an officer." Addar
testified that while they waited, Mott used her cell phone "a
lot."
Addar later collected and photographed defendant's clothing,
which he did by bringing defendant into an interview room "for
privacy[,]" although the door remained open. Addar collected
defendant's pants and sneakers, and gave him a "paper suit" to
wear. Defendant was "really calm and really cooperative throughout
the whole process[,]" and according to Addar, was treated "like a
witness" during their interactions.
James Francis, a Trenton Detective Sergeant, also testified
on behalf of the State. Francis had previously worked in the
homicide unit, and he responded to the shooting scene. Detective
Edgar Rios was assigned to work on the investigation with Francis.1
While searching the area, Francis located the "primary crime
scene[,]" at which he found the victim's clothes and "numerous
shell casings[.]"
According to Francis, after searching the crime scene, he
returned to the station to interview witnesses. He first
1
Rios was injured while on duty in 2013, and did not testify at
the hearing.
5 A-4091-14T3
interviewed Mott at Rios's desk, located "in the rear of the
homicide office, right at the window." While Francis interviewed
Mott, defendant was left in the "waiting area" with no "police
guard."
Francis testified that the conversation with Mott was "very
low key[,]" as he and Rios "tried to ascertain any information
that she had regarding the incident." The interview took about
an hour. Mott did not give a formal statement at the time, because
she had to leave due to "childcare issues[.]" She returned another
day and gave a formal statement.
Francis recounted that he and Rios drove Mott home after her
interview, prior to interviewing defendant. After taking Mott
home, Francis and Rios "reexamined the crime scene[,]" which was
"two or three row homes away" from Mott's home. That took "[u]nder
half an hour." According to Francis, they were gone for no more
than one hour, because the crime scene was located approximately
five minutes by car from the police station.
Upon returning to the station, Francis and Rios interviewed
defendant at the same location they had questioned Mott. Francis
testified that, generally, if a person is considered a suspect or
in custody, he or she is interviewed in "one of three video
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interview rooms." Francis did not read defendant his Miranda2
rights prior to that interview, because the police "don't Mirandize
witnesses." At that time, Francis and Rios did not have "any
idea" that defendant was potentially more than a witness.
Francis explained that it was "normal" for detectives to take
evidence from witnesses, such as defendant's clothing in this
case. Francis gave defendant "a light jacket that was hanging up
in the homicide conference room" to wear over the paper suit,
because "[t]he air conditioner was on, [and] it was pretty cold."
According to Francis, defendant told them during the
interview that, prior to the shooting, he ran into a person with
whom he had gotten into a fight earlier in the week. When they
ran into one another, they got into another fight, which Mott
eventually broke up. Francis further testified that defendant
stated that, as he and his group started walking away, the other
group "started running towards them" so he and Mott went inside
her house. Defendant then called his brother, who came to the
area with his cousin. The three men then "went walking around
looking for the guys" that defendant had been fighting earlier.
They did not find the group, and as they were walking back towards
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7 A-4091-14T3
Mott's house, defendant heard "multiple gunshots coming from the
alleyway" where his brother was walking.
Francis testified that defendant stated he then ran down the
alley and saw his brother "on the ground firing at a group of men"
in the alley. Defendant then "grabbed the gun and started firing
at the same boys." Defendant could see that his brother was shot
in the neck at the time.
As recounted by Francis, defendant then told the detectives
that, once the other group ran away, defendant "drag[ged]" his
brother out of the alley to the front of the house. Francis did
not believe defendant's account, because "it just didn't make
sense that his brother could still be returning fire with
conceivably a life-threatening injury to his neck where blood was
gushing out." Francis also did not believe that defendant "called
his brother out to basically help him with a fight and then he
lets him walk down an alleyway . . . by himself without backing
him up or assisting him in any way."
Francis told defendant that his "story" was "not really adding
up to the physical evidence[.]" According to Francis, defendant
then "displayed like a little bit of defeat[,] maybe with his
shoulder slouching and said okay I was – I was firing the gun."
At that point, and after consulting with an assistant prosecutor,
Francis read defendant his Miranda rights before asking any
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additional questions. Francis testified that defendant did not
make "any indication" that he wanted a lawyer or wanted to stop
the conversation.
Francis and Rios then took defendant to an interview room,
and began recording the interview. Defendant was not handcuffed
at that point.
According to the transcript of that interview, Rios read
defendant his Miranda rights, and then had defendant read them
back before signing. At one point, Rios defined the term
"coercion" for defendant, and then ensured that defendant
understood its meaning by having defendant explain it back to the
detectives.
After waiving his Miranda rights, defendant relayed to the
detectives how the incident began with a fight between him and a
member of the other group. Defendant stated in that interview
that he called his brother for help, who showed up thereafter.
According to defendant, his brother gave him a gun to "hold" prior
to confronting the other group. Defendant then explained to the
detectives how the altercation between the two groups ended with
gunshots.
B.
Mott, defendant's girlfriend, testified on his behalf at the
suppression hearing. As she described it, once the police arrived,
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they put defendant in the police vehicle. Mott went over to the
vehicle to "try[] to calm him down and figure out why he was being
put in the police car." According to Mott, the police asked her
to get in the car with defendant to "calm him down[.]"
Mott testified that one police officer then told another to
"take [them] down to the police station." Mott further testified
that defendant said "he didn't want to go, but the cop said to him
that they probably just want to talk to him when he get[s] down
there." Mott asserted on cross-examination that she did not have
her phone with her when they went to the station.
According to Mott, the police took defendant into a different
room when they arrived at the station. Mott testified that, from
where she was sitting, she could hear the police "yelling at
[defendant] telling him that his story was bull[.]" Mott also
testified that defendant "tried to talk to [her] through the door
and the cops removed [her] from right there" because she "couldn't
talk to him[.]" Defendant allegedly "asked to leave to go" to the
hospital as well. Mott further asserted on cross-examination that
the police "told [defendant] that he couldn't leave until the gun
appeared."
Mott testified that Officer Rios later came to her and told
her she "was lying to him about who had the gun." According to
Mott, however, she had not previously spoken to the police, so she
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was "confused" by that assertion. Mott further testified that she
did not leave the station that day until "almost ten o'clock that
night."
Lastly, defendant testified on his own behalf at the hearing.
He asserted that he could not remember his initial conversation
with the police at the scene of the shooting, because he was
"stressed out and in shock[.]" According to defendant, he was "in
the stage of blacking out" when an officer told him "to get in the
car until you calm down." Defendant allegedly told them "no, I
don't want to get in the car[,]" at which point the officers "put
[him] in the car and from there [he] was still crying, yelling."
Defendant testified that, once he was taken to the station,
he did not feel free to leave. However, he acknowledged that he
did not ask to leave.
Defendant further testified that, while being questioned, the
officers told him that his story was "bullshit." He claimed that
he felt "threatened" at that point, because the officers allegedly
told him that if he did not tell them the "right story" about what
happened, they would charge him with his brother's murder, should
he die from his injuries. According to defendant, he told the
police at that point that he had "told [his brother] to pass [him]
the gun and [he] gave it to somebody and they took it and ran off
with it."
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Defendant claimed that he was promised during his second
interview with the officers that, if he gave them the gun, "they
were going to let [him] go." According to defendant, he only gave
the videotaped statement because he believed that "if [he] just
gave them that statement, that would get [him] out of the police
station quicker."
Defendant also testified that he did not understand the
Miranda form that he signed, and he only signed it because he was
"tired" and "exhausted." He further asserted that he asked for a
lawyer "[a]t one point in time[,]" but could not remember when.
Defendant's grandmother allegedly came down to the station at some
point, although it is unclear if she arrived before or after
defendant was given Miranda warnings, but the police allegedly
"wouldn't let her up" to see him.
Defendant admitted on cross-examination that he had
previously been arrested "several" times, and had been Mirandized
on more than two prior occasions. One of those occasions occurred
in December 2009, and a copy of the Miranda form used in that
matter was admitted into evidence at this hearing. Defendant
testified that, although the signature on that form from 2009 was
his, he did not remember signing it.
12 A-4091-14T3
C.
Apart from these fact witnesses, defendant and the State each
presented competing expert testimony concerning the voluntariness
of defendant's statements when he was interviewed at the police
station. Defendant's expert, Dr. Kenneth Weiss, a forensic
psychiatrist, noted that defendant's measured IQ scores are
indicative of "borderline intellectual functioning[,]" although
perhaps not severe enough to support a diagnosis of "intellectual
disability." Dr. Weiss observed that, during his interview with
defendant he "did not express himself clearly at all times[.]" He
also displayed "difficulty understanding" some of Dr. Weiss's
questions, although he did ask for clarification when that
occurred. Having reviewed the videotape of defendant's recorded
police interview, Dr. Weiss concluded that defendant "lacked
cognitive ability" at that time, and "would not fully understand"
what his rights were or how to exercise them. Dr. Weiss thus
opined that defendant's waiver of his self-incrimination privilege
was neither knowing nor intelligent.
By contrast, the State's forensic psychiatrist, Dr. Charles
Martinson, had more favorable impressions of defendant's cognitive
abilities. Dr. Martinson classified defendant as "probably
somewhat below average in terms of overall intellectual
functioning." Having likewise reviewed the interview videotape,
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Dr. Martinson noted that defendant presented himself in a "calm
and composed fashion," and did not appear so "emotionally
overwrought" as to be unable to knowingly and intelligently waive
his rights. Dr. Martinson found it significant that defendant had
prior criminal encounters, including at least one prior experience
being Mirandized by police. That prior experience, in which
defendant had likewise been questioned after waiving his rights,
bolstered the State's expert's conclusion that defendant's waiver
in the present case was knowing and intelligent.
As additional proof on the voluntariness question, the State
lastly presented testimony from a Pennsylvania police officer who
had Mirandized defendant in one of his prior cases. The officer
testified that, when he read defendant his Miranda rights,
defendant seemed to understand, was paying attention, and was not
upset. According to that officer, defendant was handcuffed during
that particular waiver discussion and the subsequent interview.
D.
The trial judge, Hon. Andrew J. Smithson, issued a detailed
oral decision on the motion to suppress on September 29, 2014. In
the course of his ruling, Judge Smithson made several important
credibility assessments. He found Mott's testimony "not
convincing" and "not of any consequence." The judge specifically
found that defendant's testimony was not credible, as his conduct
14 A-4091-14T3
showed he was "capable of thinking and acting." The judge noted
that, although defendant claimed he blacked out, he was still able
to convince the police to allow Mott to accompany him to the
station. The judge also noted that Mott was allowed to ride with
defendant in the vehicle, which would be "very unusual if one were
considered to be a suspect."
Based on the overall circumstances, Judge Smithson found that
defendant was "a critical witness to what was going on, and he was
treated that way." The judge noted that it was "not surprising"
that "defendant would understand that the police wanted to talk
to him, and there would be inconveniences involved[,]" because
defendant was at the scene and likely had information about the
shooting. As Officer Dzurkoc had testified, defendant told the
police that he knew who shot his brother, so "[o]f course the
police are going to talk to him[.]"
Judge Smithson concluded that defendant was not coerced by
the police in any way. He did note that the police "may have
allowed [defendant] to . . . harbor the belief that production of
the handgun would be his key out of police headquarters." The
judge found it significant that defendant had been Mirandized
previously, "where he made understandable choices." On the whole,
the judge found defendant's suppression testimony "utterly
unconvincing[.]"
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The judge also evaluated the opinions of the parties'
competing experts, finding the testimony of Dr. Martinson to be
more persuasive. The judge stated that he "could not disagree
more" with Dr. Weiss's overall conclusion that defendant did not
waive his rights knowingly and intelligently. The judge instead
favored Dr. Martinson's contrary findings.
In sum, the trial judge determined that defendant had the
status of a witness, not a suspect, when he was first questioned
by the police and was not at that point subjected to custodial
interrogation. The judge further concluded that defendant's
subsequent waiver of his rights, after being given Miranda
warnings, was knowing, intelligent, and voluntary. Consequently,
the suppression motion was denied.
E.
Following the court's ruling, defendant entered into a
negotiated plea of guilty to second-degree unlawful possession of
a weapon. As part of the plea agreement, the State dismissed the
other count of the indictment, and agreed to recommend a five-year
sentence, with a one-year parole ineligibility period, contingent
on a Graves Act waiver. The Presiding Criminal Judge of the
vicinage subsequently granted that waiver.
16 A-4091-14T3
On February 20, 2015, Judge Smithson sentenced defendant to
the five-year term with a one-year parole disqualifier, consistent
with the plea agreement. This appeal followed.
II.
On appeal, defendant raises the following arguments for our
consideration:
POINT I
BECAUSE TERRELL'S STATEMENTS WERE MADE DURING
CUSTODIAL INTERROGATION AND WITHOUT A VALID
WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION
THEY MUST BE SUPPRESSED.
A. Pre-Miranda Statements.
B. Post-Miranda Statements.
REPLY POINT I
TERRELL WAS IN CUSTODY BECAUSE THE POLICE TOOK
HIS CLOTHES AND HIS SHOES. HIS SUBSEQUENT
STATEMENTS WERE MADE WITHOUT A VALID WAIVER
OF HIS RIGHT AGAINST SELF-INCRIMINATION AND
MUST BE SUPPRESSED.
Having fully considered these arguments in light of the
record, the trial court's credibility findings, and the applicable
law, we affirm the denial of defendant's suppression motion. We
do so substantially for the thoughtful reasons expressed in Judge
Smithson's detailed oral opinion. We amplify his decision with
several comments.
17 A-4091-14T3
We must review a trial court's factual findings at the
suppression hearing on defendant's self-incrimination claims under
"a deferential standard." State v. Stas, 212 N.J. 37, 48 (2012).
Our appellate function, on such matters, is simply to consider
"whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record." State v.
Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42
N.J. 146, 162 (1964)). We owe "deference to those findings of the
trial judge which are substantially influenced by his opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." Johnson, supra, 42 N.J.
at 161; see also Stas, supra, 212 N.J. at 49. By comparison,
"with respect to legal determinations or conclusions reached on
the basis of the facts[,]" our review is plenary. Ibid. (citing
State v. Handy, 206 N.J. 39, 45 (2011)).
Applying those standards of review here, we are satisfied
that the trial court's credibility and other factual findings from
the suppression hearing are well-founded and should not be
disturbed. In particular, we uphold the court's forcefully-
expressed determination that defendant, his girlfriend, and his
psychiatric expert were less convincing than the State's
witnesses. That determination is buttressed by the videotape of
the post-Miranda interview of defendant, in which defendant
18 A-4091-14T3
appears to respond voluntarily and lucidly to the officers' queries
with no manifest indications of coercion.
We reject the State's argument that the officers' initial
questioning of defendant at the police station before the Miranda
warnings were given should be treated as a custodial interrogation
requiring Miranda warnings. Viewing the "totality of
circumstances[,]" see State v. Presha, 163 N.J. 304, 313 (2000),
we agree with the trial court's assessment that defendant had the
status of a witness, rather than a criminal suspect, when he was
initially interviewed by the police.
As a general proposition, police officers do not necessarily
place someone in custody simply by asking that person to accompany
them to a police station. See, e.g., State v. Marshall, 148 N.J.
89, 225-26, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997); State v. Purnell, 310 N.J. Super. 407, 421-22 (App.
Div. 1998) (determining that the defendant was not in custody
after police took him to a police station), rev'd on other grounds,
161 N.J. 44 (1999). Similarly, "[i]f the questioning is simply
part of an investigation and is not targeted at the individual
because she or he is a suspect, the rights provided by Miranda are
not implicated." State v. Timmendequas, 161 N.J. 515, 614-15
(1999) (citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div.
1998)).
19 A-4091-14T3
Defendant likens the circumstances in this case to those in
State v. Hubbard, 222 N.J. 249 (2015), and State v. Messino, 378
N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005).
We find neither of those cases factually on point here. We
acknowledge that in both Hubbard, supra, 222 N.J. at 271, and
Messino, supra, 378 N.J. Super. at 573, as in this case, the
defendant was brought to a police station after a victim was killed
or severely harmed. However, in Hubbard, the detective's questions
"roamed far from merely obtaining information that might assist
[in] the [victim's] treatment." Hubbard, supra, 222 N.J. at 271.
Moreover, the substance and nature of the interview in Hubbard
were suggestive of a custodial interrogation. Id. at 272.
By contrast, there is ample support in the record for the
trial court's finding that the nature and tenor of the officers'
initial interview of defendant was consistent with treating him
as a witness to his brother's shooting, rather than a targeted
suspect. Defendant declared at the shooting scene that he knew
who was responsible for the shots. He voluntarily came with
officers to the police station, accompanied in the same squad car
by his girlfriend, who was also a potential eyewitness. He was
not handcuffed at any time. He was not placed in an interrogation
room at the station.
20 A-4091-14T3
The substance of the initial interview, fairly construed, was
focused upon obtaining relevant information from defendant, who
was a first-hand eyewitness and therefore a person who could assist
in gathering the pertinent facts. When defendant revealed for the
first time that he had held a gun and fired shots from it at the
scene after his brother was harmed, the police appropriately
terminated the session, issued Miranda warnings, and moved
defendant into an interrogation room.
Likewise, there are significant differences here from the
circumstances in Messino, in which a defendant made incriminating
statements at a police station after his girlfriend's child had
died of apparent blunt force trauma. We concluded in Messino that
the questioning in that case amounted to a custodial interrogation.
Supra, 378 N.J. Super. at 576-77. As a key part of our analysis,
we focused on the fact that the police station was eighteen to
twenty miles from the defendant's home, and that there was "no
practical way for [him] to leave the building[.]" Id. at 576.
Here, by comparison, the station was located only a few minutes
by car from defendant's girlfriend's house. There were several
people at his girlfriend's house earlier that day who might have
been able to assist him. Moreover, according to defendant's
version of the events, his grandmother had come down to the station
to see him.
21 A-4091-14T3
Defendant stresses that he was wearing a paper suit and that
his bloody clothes and shoes had been taken away from him. Even
so, the police acted reasonably in taking those items of apparel
from defendant, for reasons of both hygiene and evidence
preservation. Conceivably, defendant's girlfriend, mother, or
some other third party could have brought him clothing and shoes.
There is no indication that if defendant made such a request, the
police would have denied it.
Defendant also emphasizes the delay of him waiting
approximately four hours at the station before his interview was
started. The testifying police officers provided a reasonable
explanation for that delay, having decided to interview
defendant's girlfriend first and take her home before turning to
defendant. The police were also involved in ongoing investigatory
activities at the scene of the shooting.
Although the four-hour delay was relatively long, there is
no indication that defendant ever expressed impatience or a desire
to leave while he was waiting. As the trial court found, defendant
presumably had some incentive to remain and show the police that
he could be of assistance to them, by locating the gun that had
been used to shoot his brother. The fact that the officers
expressed disbelief or skepticism in reaction to defendant's
initial account of the events did not convert the situation to a
22 A-4091-14T3
custodial interrogation. As the judge found, defendant's version
of what had occurred at the scene was not credible, and the
officers reasonably had the same reaction.
In sum, we agree with the trial court that defendant was not
the subject of a custodial interrogation until the point when that
interview was halted and Miranda warnings were given.
We likewise concur with the judge's well-established findings
that the post-Miranda questioning was not coercive, and that
defendant voluntarily and intelligently waived his rights before
the questioning was conducted. Although defendant may have some
cognitive limitations, the trial court had a reasonable basis to
agree with Dr. Martinson's expert opinion that defendant was
sufficiently knowledgeable to understand his rights and waive
them. Moreover, the video recording buttresses the judge's
determination of a lack of coercion during the session.3
Affirmed.
3
For sake of completeness, we do note our agreement with defendant
that, if we had found the pre-Miranda questioning to comprise a
custodial interrogation, the contents of the post-Miranda
questioning would likewise require suppression. See State v.
O'Neill, 193 N.J. 148, 180-87 (2007) (enumerating various factors
for such an assessment, including, notably here, the proximity in
time between the pre-warning and post-warning statements and the
failure of officers to inform a defendant that his pre-warning
statements cannot be used against him).
23 A-4091-14T3