State v. Anthony Sims, Jr. (085369) (Monmouth County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Anthony Sims, Jr. (A-53-20) (085369)
Argued October 12, 2021 -- Decided March 16, 2022 -- Revised March 16, 2022
PATTERSON, J., writing for the Court.
In this appeal, defendant Anthony Sims, Jr. challenges his conviction of attempted
murder and weapons offenses arising from the April 9, 2014 shooting of P.V. The Court
first considers the Appellate Division majority’s holding that police officers, prior to
interrogation, are required to inform an arrestee of the charges that will be filed against
him, even when no complaint or arrest warrant has been issued identifying those charges.
Here, the divided panel found that the police officers who interrogated defendant violated
his Miranda rights by not providing that information. Second, the Court considers
whether the trial court’s decision to admit at trial P.V.’s prior testimony at a pretrial
hearing violated the rule against hearsay and the Confrontation Clause.
On April 13, 2014, four days after the shooting, detectives went to the hospital and
met with P.V., who identified defendant as the man who shot him in a recorded
statement. On April 14, 2014, prior to the issuance of any complaint or warrant or the
filing of formal charges against defendant, detectives arrested defendant and conducted a
videorecorded interview. Defendant was read his Miranda rights and he waived those
rights. In an interview that lasted just over two hours, defendant gave a statement in
which he said that he knew P.V., that he was aware of the shooting, and that his girlfriend
owned a vehicle that matched the description of a vehicle observed near the scene of
P.V.’s shooting. Defendant denied that he was involved in the shooting.
Defendant moved to suppress his April 14, 2014 statement to police. Based on the
totality of the circumstances, the trial court held that defendant’s waiver of his Miranda
rights was knowing and voluntary, and accordingly denied defendant’s motion.
Defendant also moved to suppress P.V.’s April 13, 2014 statement to police at the
hospital. On April 14, 2016, the trial court held a Wade/Henderson hearing, and the State
called P.V. as a witness. During his direct examination, P.V. testified that he
remembered nothing about the incident and had no recollection of telling detectives that
defendant was the person who shot him. When defense counsel cross-examined P.V., he
suggested that he had learned details of the shooting in later conversations with his
mother, reiterated that he had no recollection of the incident or his conversation with
detectives, and stated that he feared the prosecutor’s office and the police department.
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P.V. was subsequently indicted for the murder of defendant’s brother. Although
offered an immunity agreement by the State and ordered to testify by the trial court, P.V.
asserted his Fifth Amendment privilege not to testify. The trial court permitted the State
to present at trial P.V.’s testimony at the Wade/Henderson hearing as the prior testimony
of an unavailable witness.
The Appellate Division vacated defendant’s convictions and remanded for a new
trial. 466 N.J. Super. 346, 354-55 (App. Div. 2021). A divided panel held that the police
officers who interrogated defendant violated his Miranda rights. Id. at 361-69. The court
unanimously held that the trial court’s decision to admit at trial P.V.’s prior testimony
violated the rule against hearsay and the Confrontation Clause. Id. at 377-78.
The State appealed as of right as to the Miranda issue, and the Court granted
certification on the remaining issues. 246 N.J. 146 (2021).
HELD: The Court declines to adopt the new rule prescribed by the Appellate Division
and finds no plain error in the trial court’s denial of defendant’s motion to suppress his
statement to police. The Court also concurs with the trial court that the victim’s
testimony at the pretrial hearing was admissible under N.J.R.E. 804(b)(1)(A)’s exception
to the hearsay rule for the prior testimony of a witness unavailable at trial, and that the
admission of that testimony did not violate defendant’s confrontation rights.
1. The Court first considers the trial court’s decision denying defendant’s motion to
suppress his statement to police. Under New Jersey law, the State bears the burden to
prove beyond a reasonable doubt that a suspect’s waiver of his privilege against self-
incrimination prior to an inculpatory statement was knowing, intelligent, and voluntary in
light of all the circumstances. In State v. A.G.D., the Court departed from the totality-of-
the-circumstances rule and required law enforcement officers to inform a suspect that a
criminal complaint has been filed or arrest warrant has been issued before interrogating
him. 178 N.J. 56, 68-69 (2003). The Court reasoned that the failure to inform a suspect
that a criminal complaint or arrest warrant has been filed or issued deprives that person of
information indispensable to a knowing and intelligent waiver of rights. Id. at 68. The
rule announced in A.G.D. is clear and circumscribed. If a complaint-warrant has been
filed or an arrest warrant has been issued against a suspect whom law enforcement
officers seek to interrogate, the officers must disclose that fact to the interrogee and
inform him in a simple declaratory statement of the charges filed against him before any
interrogation. The officers need not speculate about additional charges that may later be
brought or the potential amendment of pending charges. (pp. 23-28)
2. The Appellate Division’s expansion of the rule stated in A.G.D. is unwarranted and
impractical. A.G.D. mandates disclosure of factual information about pending charges
that the officer can readily confirm and clearly convey. The principle stated in A.G.D.
stands in stark contrast to the Appellate Division’s expanded definition of an arrestee’s
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Miranda rights, which relies not on an objective statement of the charges pending against
the arrestee, but on an officer’s prediction, based on information learned to date in a
developing investigation, of what charges may be filed. The Appellate Division’s new
rule would starkly depart from the Court’s prior precedent and from the law of every
other jurisdiction. The Court affirms the trial court’s application of the totality-of-the-
circumstances standard to deny defendant’s motion to suppress his statement. Defendant
was read his Miranda rights and waived those rights verbally and in writing. (pp. 28-33)
3. The Court next considers the trial court’s decision to admit into evidence P.V.’s
testimony at the Wade/Henderson hearing at defendant’s trial. N.J.R.E. 804(b)(1)(A)
authorizes the admission of an unavailable declarant’s testimony from a prior proceeding
if the testimony “is now offered against a party who had an opportunity and similar
motive in the prior trial, hearing or deposition to develop the testimony by examination or
cross-examination.” A declarant who persists in refusing to testify concerning the subject
matter of the statement despite an order of the court to do so is deemed unavailable to
testify at trial. N.J.R.E. 804(a)(2). The proponent of the evidence bears the burden of
proving that the requirements of N.J.R.E. 804 are met. (pp. 33-38)
4. The trial court’s admission of P.V.’s prior testimony constituted a proper application
of N.J.R.E. 804(b)(1)(A). P.V. was unavailable under N.J.R.E. 804(a)(2) because he
confirmed that he would invoke his right against self-incrimination if called as a witness
despite the State’s offer of immunity and the trial court’s order that he testify. At the
Wade/Henderson hearing, defense counsel not only had the opportunity to cross-examine
P.V., as N.J.R.E. 804(b)(1)(A) requires, but thoroughly and skillfully questioned P.V.
The jury had the benefit of that cross-examination when it considered P.V.’s hearing
testimony and assessed his credibility. The State also demonstrated that defendant had a
similar motive at the hearing to develop the testimony because at the hearing, as at trial,
defendant’s motive was to impeach P.V.’s credibility, underscore P.V.’s claimed lack of
recollection, suggest that police coercion was a factor in P.V.’s identification of
defendant, and attack P.V.’s statement as unreliable. (pp. 38-40)
5. The Court considers whether the introduction of P.V.’s statement violated defendant’s
rights under the Confrontation Clause. The Federal and State Constitutions provide that
in all criminal prosecutions, the accused shall enjoy the right to be confronted with the
witnesses against him. In Crawford v. Washington, the United States Supreme Court
held that the framers of the Constitution intended the Confrontation Clause to bar the
admission of “testimonial statements of a witness who did not appear at trial unless [the
declarant is] unavailable to testify, and the defendant had . . . a prior opportunity for
cross-examination.” 541 U.S. 36, 53-54 (2004). “[T]he Confrontation Clause guarantees
an opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20 (1985). Federal courts have held that a witness’s testimony at a
preliminary hearing, such as the Wade/Henderson hearing at issue here, can provide the
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constitutionally mandated opportunity to cross-examine. Moreover, the defendant may
be deemed to have had a prior opportunity for cross-examination even if the witness
denies recollection of relevant events. The Confrontation Clause is not violated by the
admission of an unavailable witness’s prior testimony simply because that witness claims
that he does not recall the event at issue. (pp. 40-44)
6. P.V.’s Wade/Henderson hearing testimony met the requirements of the Confrontation
Clause. Just as P.V. was an “unavailable” declarant as defined in N.J.R.E. 804(a)(2), he
was “unavailable to testify” at trial for purposes of the Confrontation Clause. See
Crawford, 541 U.S. at 53. And defendant had the adequate “prior opportunity for cross-
examination” envisioned by the Supreme Court’s confrontation jurisprudence. See ibid.At the hearing, defendant had the opportunity to attack the credibility of P.V.’s statement
identifying defendant as the shooter. Indeed, defendant elicited P.V.’s testimony
disclaiming recollection of any statement, implying that comments attributed to him were
his mother’s, and inferring that he acted out of fear of some of the investigating officers.
Finally, the trial court did not improperly admit P.V.’s April 13, 2014 statement to police
at the hospital through the State’s questioning of P.V. at the Wade/Henderson hearing.
P.V.’s statement was not offered into evidence -- let alone admitted into evidence -- at
defendant’s trial, and the court was not asked to exclude any portion of his testimony.
There was no improper admission of hearsay within hearsay here. (pp. 44-47)
REVERSED and REMANDED to the Appellate Division.
JUSTICE ALBIN, dissenting, would reverse Sims’s conviction on the grounds
that the admission of Sims’s statement violated his right against self-incrimination and
the admission of P.V.’s hearsay statements implicating Sims violated Sims’s
confrontation rights. Justice Albin writes that concealing from Sims the charges that he
was facing did not comport with the guarantees afforded to the accused under New
Jersey’s law against self-incrimination or jurisprudence, noting that police officers should
have no difficulty telling the person the charge or charges that they believe justify the
defendant’s detention. Without that critical information, Justice Albin explains, a
defendant cannot intelligently decide whether to waive his right against self-
incrimination. According to Justice Albin, Sims did not have the same motive or
opportunity to cross-examine P.V. at the Wade hearing that he would have at trial had
P.V. testified. Justice Albin stresses the limited purpose of a Wade hearing and that
Sims’s attorney made clear that his cross-examination of P.V. at trial would have been far
more extensive. In Justice Albin’s view, P.V.’s hearsay statement at the hospital was
laundered through the Wade hearing intact and presented fresh at trial but without a
witness to confront.
CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE
PATTERSON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICE
PIERRE-LOUIS joins.
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SUPREME COURT OF NEW JERSEY
A-53 September Term 2020
085369
State of New Jersey,
Plaintiff-Appellant,
v.
Anthony Sims, Jr.,
Defendant-Respondent.
On appeal from and certification to the Superior Court,
Appellate Division, whose opinion is reported at
466 N.J. Super. 346 (App. Div. 2021).
Argued Decided Revised
October 12, 2021 March 16, 2021 March 16, 2022
Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
appellant (Lori Linskey, Acting Monmouth County
Prosecutor, attorney; Maura K. Tully, Assistant
Prosecutor, of counsel and on the briefs).
Rochelle M. Watson, Deputy Public Defender II,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Rochelle M. Watson, and
Robert Carter Pierce, Designated Counsel, on the
briefs).
Frank Muroski, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Andrew J. Bruck, Acting Attorney General, attorney;
Frank Muroski, of counsel and on the brief).
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John McNamara, Jr., Special Deputy Attorney
General/Acting Chief Assistant Morris County
Prosecutor, argued the cause for amicus curiae County
Prosecutors Association of New Jersey (Esther A. Suarez,
President, County Prosecutors Association of New
Jersey, attorney; John McNamara, Jr., of counsel and on
the brief).
Aidan P. O’Connor argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Pashman Stein Walder Hayden, attorneys; CJ Griffin, on
the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, defendant Anthony Sims, Jr. challenges his conviction of
attempted murder and weapons offenses arising from the April 9, 2014
shooting of a twenty-eight-year-old man, P.V., outside his grandmother’s
home.
The appeal requires that we consider two issues. First, we review as of
right the decision of a divided Appellate Division panel vacating defendant’s
convictions and remanding for a new trial on the ground that the police
officers who interrogated defendant violated his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). State v. Sims, 466 N.J. Super. 346, 361-69
(App. Div. 2021). Deciding an issue that defendant did not raise before the
trial court, the Appellate Division adopted a new rule requiring police officers,
prior to interrogation, to inform an arrestee of the charges that will be filed
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against him, even when no complaint or arrest warrant has been issued
identifying those charges. Id. at 369. We decline to adopt the rule prescribed
by the Appellate Division and find no plain error in the trial court’s denial of
defendant’s motion to suppress his statement to police.
Second, we consider the Appellate Division’s ruling that defendant was
deprived of a fair trial because of an evidentiary determination by the trial
court. The Appellate Division held that the trial court’s decision to admit at
trial P.V.’s prior testimony at a pretrial hearing, in which P.V. claimed that he
had no recollection of an earlier out-of-court statement to police implicating
defendant in the crime, violated the rule against hearsay and the Confrontation
Clause. Id. at 377-78. We concur with the trial court that the victim’s
testimony at the pretrial hearing was admissible under N.J.R.E. 804(b)(1)(A)’s
exception to the hearsay rule for the prior testimony of a witness unavailable at
trial, and that the admission of that testimony did not violate defendant’s
confrontation rights.
Accordingly, we reverse the Appellate Division’s judgment and remand
this matter to the appellate court so that it may consider two issues raised by
defendant that it did not reach.
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I.
A.
We derive our summary of the facts from the record presented to the
trial court in pretrial motions and the trial record.
On April 9, 2014, P.V.’s grandmother heard P.V. calling for help outside
her home in Red Bank. She found her grandson “partially in the driveway on
the pavement” and “partially in the car.” P.V. had sustained twelve bullet
wounds to the torso, leg, buttocks, and upper arm, and was bleeding “in two,
three places very badly.” According to P.V.’s grandmother’s trial testimony,
she asked P.V. “who did this to you,” and he responded, “Sims.” She stated
that when she pressed her grandson to tell her who “Sims” was, he responded,
“B.J.’s brother.” P.V.’s grandmother testified that the nickname “B.J.”
denoted defendant’s brother, whom she knew because he was a friend of
several members of her family.
P.V.’s uncle called 9-1-1, and P.V. was taken to a hospital. Police
officers were initially unable to speak with P.V. because he was intubated. On
April 13, 2014, four days after the shooting, P.V.’s mother informed Detective
Robert Campanella of the Red Bank Police Department that P.V. was no
longer intubated. Later that day, Detective Brian Weisbrot of the Monmouth
County Prosecutor’s Office, accompanied by Campanella and another Red
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Bank officer, Detective James DePonte, went to the hospital and met with
P.V., who agreed to give them a recorded statement.
In his statement, P.V. said that on the evening of the shooting, he was
sitting in his car talking on his phone and “noticed a man crouched down
holding a gun with two hands aiming in a like crouching position” and that the
man “started shooting” at him. P.V. stated that “[t]he minute that I looked at
him, I knew what it was and I knew who it was, Anthony Sims, Jr.,” whom
P.V. had known for ten years through defendant’s brother, B.J. According to
the statement, P.V. told the detectives that he and defendant’s brother “had a
falling out,” “were supposed to fight,” and that “B.J. and Anthony Sims are
brothers.” P.V. said that he thought that defendant’s brother was involved in
the shooting incident because he did not have “any other problems with
Anthony Sims, Jr.” and because, when he saw defendant’s brother B.J. two
hours before the shooting, B.J. “pulled off.” P.V. identified the weapon used
by defendant in the shooting as a “black semiautomatic.”
P.V. identified a photograph of defendant, marked it with defendant’s
name, and wrote the date and time of the identification and his initials on
defendant’s photograph.
On April 14, 2014, prior to the issuance of any complaint or warrant or
the filing of formal charges against defendant, Campanella and Weisbrot
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arrested defendant. According to Campanella’s trial testimony, he advised
defendant “that he was being placed under arrest,” handcuffed him, and told
him that they would transport him to a satellite facility of the prosecutor’s
office. Campanella recalled that defendant asked “what was going on and why
he was being placed under arrest,” and that he told defendant that the officers
“would get into the details” when they reached the prosecutor’s office.
Weisbrot, Campanella, and DePonte then transported defendant to the
prosecutor’s office and escorted him to an interview room.
Weisbrot and Campanella then conducted a videorecorded interview.
Using a Miranda waiver form, Weisbrot read defendant his Miranda rights.
Defendant asked, “[s]o I’m under arrest or something?” Weisbrot told
defendant, “[y]ou are under arrest yes. . I’m sure you have a ton of questions.
I’ll be happy to get into all that, okay, in just a few minutes. Let’s just finish
this form. Okay?” Defendant then acknowledged and waived his Miranda
rights.
In an interview that lasted just over two hours, defendant gave a
statement in which he said that he knew P.V., that he was aware of the
shooting, and that his girlfriend owned a blue Ford Explorer, a vehicle that
matched the description of a vehicle observed near the scene of P.V.’s
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shooting. Defendant denied that he was involved in the shooting and stated
that his brother, B.J., had no “beef or issues” with P.V. or his family.
B.
1.
A grand jury indicted defendant for first-degree attempted murder, with
a sentencing enhancer that the crime had been committed with a firearm; first-
degree unlawful possession of a weapon, later downgraded by the trial court to
a second-degree offense; second-degree possession of a weapon for an
unlawful purpose; and second-degree certain persons not to possess weapons, a
charge that the State dismissed before trial.
2.
Defendant moved to suppress his April 14, 2014 statement to police. He
conceded that the officers had informed him of his Miranda rights and that he
had acknowledged those rights and signed a waiver form. Defendant argued,
however, that because the detectives were aware that he was on parole on the
date of his arrest, they should have refrained from questioning him until they
determined whether he had an attorney. He also contended that the officers
used deceptive techniques in a lengthy interrogation, and that they should have
either repeated the Miranda warnings or terminated questioning. Defendant
did not claim before the trial court that his statement should be suppressed
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because he was not informed before his interrogation of the reason for his
arrest or the charges that he would later face.
The trial court conducted a hearing pursuant to N.J.R.E. 104 with respect
to defendant’s motion to suppress his statement. Based on the totality of the
circumstances, the court held that the State had proven beyond a reasonable
doubt that defendant’s waiver of his Miranda rights was knowing and
voluntary, and accordingly denied defendant’s motion to suppress.
3.
Defendant also moved to suppress P.V.’s April 13, 2014 statement to
police at the hospital, in which P.V. identified defendant as the man who shot
him.
On April 14, 2016, the trial court held a hearing pursuant to United
States v. Wade, 388 U.S. 218 (1967) and State v. Henderson, 208 N.J. 208(2011). The State called P.V. as a witness at the Wade/Henderson hearing.
During his direct examination, P.V. claimed that because of the “traumatic
experience” of the shooting, he remembered nothing about the incident. P.V.
testified that he had no recollection of telling Campanella, Weisbrot, or
DePonte that defendant was the person who shot him. He claimed that he did
not recall describing to the officers the weapon used in the shooting, providing
them with details of the incident, discussing with them a dispute with
8
defendant’s brother B.J., or initialing a photograph of defendant at their
request. P.V. confirmed the accuracy of his date and place of birth, address,
social security number, and other biographical details set forth in his April 13,
2014 statement, but said that he did not recall providing those details to the
detectives.
Defense counsel cross-examined P.V. at the Wade/Henderson hearing.
P.V. suggested that he had learned details of the shooting in later
conversations with his mother and reiterated that he had no recollection of the
incident or his conversation with detectives on April 13, 2014. P.V. stated that
since the date of his statement to the officers, he had cut back on prescription
medication that had affected his memory. He acknowledged his prior
convictions and insisted that his testimony at the Wade/Henderson hearing was
truthful. P.V. said that the officers had not threatened him, but that he feared
the prosecutor’s office and believed that the Red Bank Police Department was
conducting a “witch hunt” against him.
Following P.V.’s testimony at the hearing, the State advised the trial
court that it viewed P.V.’s stated lack of recollection of the shooting to be
feigned. The court agreed that P.V. was apparently feigning a lack of
recollection but noted that the jury would determine P.V.’s credibility. The
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trial court denied defendant’s motion to suppress P.V.’s out-of-court statement
and granted the State’s motion to admit that statement into evidence.
On June 6, 2017, the State notified the trial court that P.V. had been
indicted for the murder of defendant’s brother, B.J. The State told the court
that it understood that if P.V. were called as a witness at defendant’s trial, he
would likely invoke his Fifth Amendment privilege against self-incrimination
and decline to testify. The State represented that it had been advised that P.V.
would refuse to testify even if he were offered immunity. It urged the court to
hold that P.V. was “unavailable” to testify at trial pursuant to N.J.R.E.
804(a)(2), which provides that a witness who “persists in refusing to testify
concerning the subject matter of the statement despite an order of the court to
do so” is “unavailable” for purposes of N.J.R.E. 804. The State asked the trial
court to admit P.V.’s testimony at the Wade/Henderson hearing as the
testimony of an unavailable witness at a prior hearing pursuant to N.J.R.E.
804(b)(1)(A).
Defendant opposed the admission of P.V.’s testimony on the ground that
the attorney who had represented him at the Wade/Henderson hearing had not
asked P.V. all of the questions that his trial counsel would ask P.V. were he to
testify before the jury at trial. Defendant argued that he had the right to
confront P.V. at trial so that the jury could observe his demeanor. He asserted
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that there were insufficient indicia of reliability to admit P.V.’s prior testimony
under an exception to the hearsay rule, in light of the uncertainty of P.V.’s
identification of defendant as the shooter.
The trial court ruled that if P.V. refused to testify on Fifth Amendment
grounds, he would be deemed unavailable to testify at trial pursuant to
N.J.R.E. 804(a)(2) and his testimony at the Wade/Henderson hearing would
therefore be admissible at defendant’s trial as the prior testimony of an
unavailable witness under N.J.R.E. 804(b)(1)(A).
4.
At defendant’s trial, the State played for the jury his videorecorded
statement given to police on April 14, 2014.
At a hearing outside of the presence of the jury, P.V.’s counsel informed
the trial court that the State, with the approval of the Monmouth County
Prosecutor and the Attorney General, had offered P.V. an immunity agreement
pursuant to N.J.S.A. 2A:81-17.3, and that P.V. had nonetheless decided to
assert his Fifth Amendment privilege if called as a witness at trial. The trial
court ordered P.V. to testify, but P.V. maintained his position that he would
refuse to do so. The trial court declared P.V. to be “unavailable” as a witness
pursuant to N.J.R.E. 804(a)(2), thus permitting the State to present his
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testimony at the Wade/Henderson hearing as the prior testimony of an
unavailable witness.
P.V. did not testify at defendant’s trial. The trial court instructed the
jury that P.V. was alive but “legally unavailable” and cautioned the jury not to
speculate about the reason for P.V.’s unavailability or draw any inference from
either party’s failure to call him as a witness.
During the direct examination of Weisbrot, the State presented to the
jury P.V.’s testimony at the Wade/Henderson hearing, sanitized to remove
information about P.V.’s prior convictions. The prosecutor read to the jury the
questions that the State had posed to P.V. at the hearing, which incorporated
details provided by P.V. during his April 13, 2014 statement to police.
Weisbrot read P.V.’s answers to those questions, in which P.V. denied any
recollection of the shooting and said that he remembered nothing about his
conversation with the officers on that date.
In addition to defendant’s statement and the testimony of P.V. at the
Wade/Henderson hearing, the State presented the testimony of: (1) a witness
who said that she heard a sound like “firecrackers” and saw a man wearing a
black hoodie get into a blue SUV; (2) a witness who said he was an
acquaintance of defendant and that he saw defendant wearing a black hoodie at
around 6:00 or 6:30, the evening of the shooting; (3) a witness who lived near
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the scene of the shooting and stated that when she ran out of her home to
investigate the sound of gunshots, she saw defendant carrying a gun, and he
raised the gun in her face; and (4) surveillance video showing a person
wearing dark clothing and carrying a black semiautomatic pistol running near
the location of the shooting shortly after it occurred.
The jury convicted defendant of all charges. The trial court sentenced
him to an aggregate term of fifty years’ imprisonment subject to an eighty-five
percent period of parole ineligibility under the No Early Release Act, N.J.S.A.
2C:43-7.2, on the attempted murder charge, and concurrent terms of
imprisonment on the weapons charges.
C.
Defendant appealed his conviction and sentence. He asserted for the
first time that the police did not tell him why he was arrested and that the
admission of his April 14, 2014 statement to police therefore violated his
Miranda rights and constituted plain error. Defendant contended that all
evidence obtained as a result of his statement should have been excluded as the
“fruit of the poisonous tree.” Defendant also challenged the admission of
P.V.’s testimony at the Wade/Henderson hearing as a violation of the Rules of
Evidence and his Sixth Amendment confrontation rights. In addition,
defendant argued for the first time that the State committed prosecutorial
13
misconduct by virtue of a comment made by the prosecutor in summation and
asserted that his sentence was excessive.
In a published opinion written by Judge Rothstadt, with Judge Susswein
concurring in part and dissenting in part, the Appellate Division vacated
defendant’s conviction and remanded the matter to the trial court for a new
trial. Sims, 466 N.J. Super. at 354-55, 379.
By a vote of two to one, the Appellate Division held that the trial court
violated defendant’s Miranda rights and committed plain error when it
admitted into evidence defendant’s April 14, 2014 statement to police. Id. at
361-69.
The Appellate Division majority relied on our decision in State v.
A.G.D., in which we held that a Miranda waiver is invalid if police do not
inform a defendant that a criminal complaint has been filed or an arrest
warrant has been issued against him. Sims, 466 N.J. Super. at 364 (citing
A.G.D., 178 N.J. 56, 58-59 (2003)). The majority also invoked our decision in
State v. Vincenty, in which we held that if charges have been filed against a
suspect prior to his interrogation, law enforcement officers should provide him
with a “simple declaratory statement” identifying those charges before
questioning him. Sims, 466 N.J. Super. at 364 (quoting Vincenty, 237 N.J.
122, 134 (2019)).
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The Appellate Division majority construed A.G.D. and Vincenty to
require that a defendant who has been arrested “be advised of the ‘actual’ and
‘specific’ charges he is facing,” whether or not any such charges have been
formally filed. Id. at 367 (quoting Vincenty, 237 N.J. at 135). It reasoned that
a defendant, “[o]nce arrested,” must be “informed of the charge for which he
was being placed under arrest before deciding whether to waive his right
against self-incrimination.” Ibid. The Appellate Division majority held that
“in response to defendant’s inquiry as to whether he was arrested, the
interrogating officers not telling defendant the charges for which he was
arrested did not satisfy the requirements of A.G.D. and Vincenty.” Ibid.
Two footnotes in the majority opinion defined the scope of the Appellate
Division’s new rule. First, the Appellate Division stated that “in this case we
are only addressing where an officer’s probable cause to arrest is developed
through an investigation, not when an arrest is made spontaneously when
responding to a crime scene or after witnessing a crime being committed.” Id.
at 368 n.6. The court added that its holding did “not address custodial
interrogation that occurs after an ‘unforeseeable and spontaneous’ arrest
because those facts are not in this case.” Ibid. (quoting State v. Witt, 223 N.J.
409, 450 (2015)).
15
Second, the Appellate Division majority dismissed the dissenting judge’s
concern “that our holding will create logistical problems for law enforcement,”
noting that
[o]ur opinion is not intended to suggest that the charge
upon which an officer believes he or she has probable
cause to arrest must be the specific charge with which
a defendant is ultimately charged. Rather, our holding
is limited to requiring that the interrogating officer
inform the arrested interrogee of the charge that, at the
time of arrest, the officer had probable cause to believe
defendant committed. We recognize that the charge
may morph into a different degree crime or even a
totally different offense as a post-interrogation
investigation develops. We still conclude the law
requires an officer be transparent and truthful about
why a defendant was arrested before a request is made
for a waiver of his or her Miranda rights.
[Id. at 368-69 n.7.]
Acknowledging “that the trial court did not have an opportunity to
consider the issue that we determined warrants a new trial in this case,” the
Appellate Division majority left to the trial court’s determination on remand
the scope of the evidence to be barred on retrial by virtue of its holding. Id. at
369.
In his concurring and dissenting opinion, Judge Susswein parted
company with the majority on the Miranda issue. Id. at 379-86 (Susswein, J.,
concurring and dissenting). He noted that when a judge has issued a criminal
16
complaint or arrest warrant, police officers are in a position “to provide a
‘simple declaratory statement’ to inform an interrogee accurately and
definitively as to the nature and seriousness of the charges that have been filed
as of the time of a custodial interrogation.” Id. at 381 (quoting Vincenty, 237
N.J. at 134). Judge Susswein observed that, in such a setting, “there is no
ambiguity as to the essential nature and gradation of the charge(s) the
defendant is facing because the specific offense(s) for which a judge found
probable cause are set forth in the charging document.” Ibid. (citing R. 3:2-
1(a)(1)). Judge Susswein explained that in a case in which a judge has not
approved charges against a suspect, an officer may “have a lawful basis for an
arrest but insufficient information, pending further investigation, to determine
which exact offense(s) have been committed.” Ibid. In Judge Susswein’s
view, “extending the bright-line rule established in Vincenty could put the
proverbial cart before the horse by requiring a police officer to advise the
custodial interrogee as to the specific charges he is facing before an informed
charging decision can be made.” Id. at 383.
The Appellate Division unanimously concluded that the trial court
abused its discretion when it admitted P.V.’s testimony at the Wade/Henderson
hearing because the testimony revealed to the jury P.V.’s assertions in his
April 13, 2014 statement to police. Id. at 378. It rejected the trial court’s
17
holding that P.V.’s hearing testimony met the requirements of N.J.R.E.
804(b)(1)(A), ruling that defendant lacked an opportunity and similar motive
in the Wade/Henderson hearing “to develop the victim’s testimony by cross-
examination.” Id. at 377 (citing State v. Coder, 198 N.J. 451, 467 (2009)).
The Appellate Division held that because “the purpose of the hearing was
limited to the victim’s out-of-court identification of defendant,” defendant
could not achieve the objective he would have pursued at trial: “to attack the
victim’s credibility in the eyes of the factfinder, specifically the veracity of his
identification of defendant as the shooter.” Ibid.The Appellate Division also ruled that the admission of P.V.’s testimony
at the Wade/Henderson hearing violated defendant’s rights under the
Confrontation Clause. Ibid. The court held that because P.V. claimed that he
had no recollection of the shooting, defendant had no “meaningful opportunity
to cross-examine” him. Id. at 378. The court held that because P.V.’s
statement was elicited through the testimony of Weisbrot -- not the testimony
of P.V. himself -- “defendant was deprived of the jury being able to assess the
victim’s demeanor.” Ibid. The Appellate Division concluded that by
admitting P.V.’s testimony at the Wade/Henderson hearing, the trial court had
also admitted P.V.’s April 13, 2014 statement to police at the hospital, because
18
the State’s questioning of P.V. incorporated the contents of that statement. Id.
at 371-72, 377-78.
The Appellate Division did not reach the prosecutorial misconduct and
sentencing issues raised by defendant. Id. at 378.
D.
Pursuant to Rule 2:2-1(a)(2) and based on Judge Susswein’s dissent, the
State appealed as of right the Appellate Division’s decision vacating
defendant’s conviction based on a violation of his Miranda rights. We granted
the State’s petition for certification, in which it challenged the Appellate
Division’s holding regarding the trial court’s admission of P.V.’s testimony at
the Wade/Henderson hearing, as well as its decision regarding defendant’s
waiver of his Miranda rights. 246 N.J. 146 (2021). We also granted the
motions of the Attorney General, the County Prosecutors Association of New
Jersey, and the Association of Criminal Defense Lawyers of New Jersey to
appear as amici curiae.
II.
A.
The State urges the Court to reverse the Appellate Division’s
determination that defendant’s Miranda waiver was not knowing, intelligent,
and voluntary because the detectives who questioned him did not identify the
19
charges that were later brought against him. It argues that the new rule
announced by the Appellate Division is an unwarranted extension of A.G.D.
and Vincenty that would introduce ambiguity and uncertainty into police
interrogations of arrestees. The State concurs with Judge Susswein that the
Appellate Division’s rule is unworkable because it would require police
officers to speculate on the charges that an arrestee might eventually face when
no judge has issued a complaint-warrant or arrest warrant.
The State also challenges the Appellate Division’s ruling regarding the
admission at defendant’s trial of P.V.’s testimony at the Wade/Henderson
hearing. According to the State, P.V. was clearly “unavailable” under N.J.R.E.
804(a)(2) because he invoked his Fifth Amendment rights and declined to
testify despite an offer of immunity, and the requirements of N.J.R.E.
804(b)(1)(A) were satisfied because defendant had a sufficient opportunity and
similar motive to cross-examine P.V. at the hearing. The State contends that
pretrial testimony admissible under N.J.R.E. 804(b)(1) also satisfies the
mandate of the Confrontation Clause.
B.
Defendant concurs with the Appellate Division majority that our
decisions in A.G.D. and Vincenty compel interrogating officers to advise an
individual arrested without a warrant about the charges that he faces before
20
questioning him. He asserts that absent such a disclosure, the arrestee’s
Miranda waiver is invalid because he is not in a position to assess his
sentencing exposure or limit the scope of his statement. Defendant argues that
the concerns expressed by Judge Susswein and the State about the practical
impact of the Appellate Division’s new rule are unfounded because law
enforcement officers are thoroughly trained to assess probable cause and make
charging determinations.
Defendant also urges that we affirm the Appellate Division’s decision
reversing his conviction because the trial court admitted into evidence P.V.’s
testimony at the Wade/Henderson hearing. He contends that the admission of
that testimony violated the Rules of Evidence because he did not have a
“similar motive” to cross-examine P.V. at the hearing and at trial, and that
portions of the hearing transcript admitted into evidence disclosed to the jury
P.V.’s out-of-court statement. Defendant also asserts that the evidence
violated his confrontation rights because the jury had no opportunity to
observe P.V.’s demeanor.
C.
Amicus curiae the Attorney General argues that the Appellate Division’s
new Miranda waiver rule is unprecedented, unnecessary, and impractical, and
urges us to reject that rule. The Attorney General contends that the admission
21
of P.V.’s pretrial testimony satisfied N.J.R.E. 804(b)(1)(A) and the
Confrontation Clause because defendant had both an opportunity to cross-
examine the witness and a motive to do so similar to the motive defendant
would have had if his counsel had cross-examined P.V. at trial.
D.
Amicus curiae the County Prosecutors Association of New Jersey agrees
with the State and the Attorney General that the Appellate Division majority’s
expanded Miranda rule unnecessarily impedes interrogations of uncharged
suspects.
E.
Amicus curiae the Association of Criminal Defense Lawyers of New
Jersey contends that the Appellate Division majority’s Miranda ruling is a
logical extension of A.G.D. that is easily implemented because officers know
what crimes are at issue when they arrest suspects and can identify those
crimes to arrestees before interrogating them. Amicus asserts that defendant
lacked a motive to cross-examine P.V. that was similar to the motive that he
would have had at trial and argues that defendant was deprived of meaningful
confrontation because P.V. did not testify at trial.
22
III.
A.
We first consider the trial court’s decision denying defendant’s motion
to suppress his statement to police.
When we review a trial court’s decision on a motion to suppress a
defendant’s statement, we defer to the factual findings of the trial court if
those findings are supported by sufficient credible evidence in the record.
State v. S.S., 229 N.J. 360, 374 (2017). Because defendant did not argue
before the trial court that his Miranda waiver was invalid because he was not
informed, prior to his interrogation, of the offenses for which he was later
charged, we review the trial court’s determination on that question for plain
error. R. 2:10-2; State v. Funderburg, 225 N.J. 66, 79 (2016). We review de
novo the Appellate Division’s legal determination expanding the Miranda
rights of arrestees in cases in which no complaint-warrant or arrest warrant has
been issued. Vincenty, 227 N.J. at 132; State v. Hubbard, 222 N.J. 249, 263
(2015).
B.
“The privilege against self-incrimination, as set forth in the Fifth
Amendment to the United States Constitution, is one of the most important
protections of the criminal law.” State v. Presha, 163 N.J. 304, 312 (2000)
23
(citing U.S. Const. amend. V; State v. Hartley, 103 N.J. 252, 262 (1986)).
Although New Jersey has no constitutional provision addressing the privilege
against self-incrimination, our “common law has granted individuals the ‘right
against self-incrimination since colonial times.’” Vincenty, 237 N.J. at 132
(quoting A.G.D., 178 N.J. at 66). Our law maintains “an unyielding
commitment to ensure the proper admissibility of confessions.” Ibid. (quoting
State v. Reed, 133 N.J. 237, 252 (1993)).
Under New Jersey law, “[a] confession obtained during a custodial
interrogation may not be admitted in evidence unless law enforcement officers
first informed the defendant of his or her constitutional rights.” State v.
Hreha, 217 N.J. 368, 382 (2014) (citing Miranda, 384 U.S. at 444). We
impose on the State the burden to prove beyond a reasonable doubt that a
suspect’s waiver of his privilege against self-incrimination prior to an
inculpatory statement “was knowing, intelligent, and voluntary in light of all
the circumstances.” Presha, 163 N.J. at 313.
Generally, when a court determines whether an interrogee has
knowingly, intelligently, and voluntarily waived his right against self-
incrimination in the setting of a custodial interrogation, it considers the totality
of the circumstances. State v. Nyhammer, 197 N.J. 383, 402-03 (2009); State
v. Dispoto, 189 N.J. 108, 124-35 (2007); State v. O’Neill, 193 N.J. 148, 181
24
(2007). “Only in the most limited circumstances have we applied a per se rule
to decide whether a defendant knowingly and voluntarily waived Miranda
rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68; Reed,
133 N.J. at 261-64).
In A.G.D., officers investigating the alleged sexual abuse of a minor
obtained a warrant for the defendant’s arrest but “neither executed the arrest
warrant nor informed defendant that such a warrant had been issued” before
interrogating him. 178 N.J. at 59. Reviewing the trial court’s denial of
defendant’s motion to suppress his statement, we departed from the totality-of-
the-circumstances rule and required police officers to inform a suspect that a
criminal complaint has been filed or an arrest warrant has been issued before
interrogating him. Id. at 68-69. As we explained, the “defendant was
disadvantaged by a lack of critically important information. The government’s
failure to inform a suspect that a criminal complaint or arrest warrant has been
filed or issued deprives that person of information indispensable to a knowing
and intelligent waiver of rights.” Id. at 68. We reasoned that “a criminal
complaint and arrest warrant signify that a veil of suspicion is about to be
draped on the person, heightening the risk of criminal liability.” Ibid. Thus,
“[w]ithout advising the suspect of his true status when he does not otherwise
know it, the State cannot sustain its burden to the Court’s satisfaction that the
25
suspect has exercised an informed waiver of rights, regardless of other factors
that might support his confession’s admission.” Ibid.In Nyhammer, we made clear that the A.G.D. rule was limited to the
circumstances of that appeal. 197 N.J. at 404-05. There, we applied the
totality-of-the-circumstances test, not a bright-line rule as in A.G.D., to a
setting in which law enforcement officers questioned the defendant about his
uncle’s role in alleged child abuse without disclosing that he was also a
suspect. Ibid. Comparing that case to A.G.D., we observed that
[t]he issuance of a criminal complaint and arrest
warrant by a judge is an objectively verifiable and
distinctive step, a bright line, when the forces of the
state stand arrayed against the individual. The
defendant in A.G.D. was purposely kept in the dark by
his interlocutors of this indispensable information.
Unlike the issuance of a criminal complaint or arrest
warrant, suspect status is not an objectively verifiable
and discrete fact, but rather an elusive concept that will
vary depending on subjective considerations of
different police officers. A suspect to one police officer
may be a person of interest to another officer.
Moreover, we emphasized that “our holding [in
A.G.D.] is not to be construed as altering existing case
law . . . other than imposing the basic requirement to
inform an interrogatee that a criminal complaint or
arrest warrant has been filed or issued.”
[Ibid. (alteration and omission in original) (quoting
A.G.D., 178 N.J. at 68-69).]
We accordingly concluded that Nyhammer did not “fall within the
limited category of cases in which we have applied a bright-line rule,” and that
26
the officers’ failure to disclose to the defendant his status as a suspect before
interrogating him should instead “be a factor in the totality-of-the-
circumstances test.” Id. at 405.
In Vincenty, police officers failed to inform a suspect of formal charges
filed against him prior to his interrogation, in which he made self-
incriminating statements. 237 N.J. at 126-29. We reiterated A.G.D.’s mandate
that law enforcement officers “make a simple declaratory statement at the
outset of an interrogation that informs a defendant of the essence of the
charges filed against” that defendant. Id. at 134. We viewed the interrogation
in Vincenty to be “precisely what A.G.D. prohibits,” as it “illustrates that
suspects cannot knowingly and intelligently determine whether to waive their
right against self-incrimination if, when making that determination, they have
not been informed of the charges filed against them.” Ibid. We accordingly
reversed the trial court’s denial of the defendant’s motion to suppress and
vacated his conviction. Id. at 136.
The rule announced in A.G.D. is clear and circumscribed. If a
complaint-warrant has been filed or an arrest warrant has been issued against a
suspect whom law enforcement officers seek to interrogate, the officers must
disclose that fact to the interrogee and inform him in a simple declaratory
statement of the charges filed against him before any interrogation. Id. at 134;
27
Nyhammer, 197 N.J. at 404-05; A.G.D., 178 N.J. at 68-69. The officers need
not speculate about additional charges that may later be brought or the
potential amendment of pending charges. Nyhammer, 197 N.J. at 404-05;
A.G.D., 178 N.J. at 68-69.
C.
We concur with Judge Susswein that the Appellate Division’s expansion
of the rule stated in A.G.D. is unwarranted and impractical. See Sims, 466
N.J. Super. at 379-86 (Susswein, J., concurring and dissenting). 1
The rule of A.G.D. mandates disclosure of factual information about
pending charges that the officer can readily confirm and clearly convey.
Vincenty, 237 N.J. at 132-35; A.G.D., 178 N.J. at 68-69. A complaint issued
by either a judge or another judicial officer authorized by N.J.S.A. 2B:12-21,
based on a finding of probable cause, is “a written statement of the essential
1
As Judge Susswein observed, neither the Appellate Division majority nor the
parties have cited any federal or state case law prescribing a rule analogous to
the Appellate Division’s new rule. Id. at 383 n.5. As we noted in Nyhammer,
“we are not aware of any case in any jurisdiction that commands that a person
be informed of his suspect status in addition to his Miranda warnings or that
requires automatic suppression of a statement in the absence of a suspect
warning.” 197 N.J. at 406; accord United States v. Whiteford, 676 F.3d 348,
362 (3d Cir. 2012) (observing that the court is aware of no authority “holding
that a defendant must know of the charges against him to validate a Miranda
waiver); United States v. Clenney, 631 F.3d 658, 668 (4th Cir. 2011)
(“[Miranda] does not require that the suspect be informed of the charges
against him.”).
28
facts constituting the offense charged.” R. 3:2-1(a)(1); see also R. 3:2-3(a),
(b) (addressing the contents of arrest warrants, which include the “initial
charge” against the defendant). 2 A complaint-warrant or arrest warrant
notifies an interrogating police officer that a judge, or other judicial officer,
has found probable cause with respect to one or more charges, and enables a
police officer to make the “simple declaratory statement” that A.G.D. requires.
Vincenty, 237 N.J. at 134. 3 So informed, the arrestee knows his “true status”
before waiving his Miranda rights, and may knowingly, intelligently, and
voluntarily waive those rights. A.G.D., 178 N.J. at 68.
The principle stated in A.G.D. stands in stark contrast to the Appellate
Division’s expanded definition of an arrestee’s Miranda rights. See Sims, 466
N.J. Super. at 361-69. The Appellate Division’s rule relies not on an objective
statement of the charges pending against the arrestee, but on an officer’s
2
Under N.J.S.A. 2B:12-21(a), “[a]n administrator or deputy administrator of a
municipal court, authorized by a judge of that court, may exercise the power of
the municipal court to administer oaths for complaints filed with the municipal
court and to issue warrants and summonses.” See also R. 3:2-3(a) (“The
warrant shall be signed by a judicial officer, which for these purposes shall be
defined as the judge, clerk, deputy clerk, authorized municipal court
administrator, or authorized deputy municipal court administrator.”).
3
The CD-1 complaint-summons and CD-2 complaint-warrant forms identify
the original charges and amended charges filed against the defendant. See R.
3:2-1 to -3.
29
prediction, based on information learned to date in a developing investigation,
of what charges may be filed. As Judge Susswein observed, even when there
is probable cause for an arrest, there may be insufficient information about the
victim’s injuries, the arrestee’s mental state, and other key issues to enable an
officer to accurately identify the charges. See id. at 381-83 (Susswein, J.,
concurring and dissenting). An officer acting in good faith might inadvertently
misinform an arrestee as to the charges that he will eventually face. 4 We do
not share the Appellate Division’s conclusion that law enforcement officers
can resolve any ambiguities or disputes about charging decisions before a
judicial officer has reviewed the showing of probable cause and issued a
complaint-warrant or arrest warrant.
Defendant suggests that if we do not adopt the Appellate Division’s new
rule, law enforcement officers will deliberately delay seeking a complaint-
warrant or arrest warrant in order to avoid disclosing to an arrestee the charges
4
We do not agree with the Appellate Division that the risk of misinformation
evaporates because the new rule applies only to arrests arising from an
investigation, not “spontaneous” arrests. See Sims, 466 N.J. Super. at 368 n.6.
The fact that an investigation has commenced does not mean that police
officers can be certain about the charges that will be brought against the
defendant. Nor do we subscribe to the majority’s view that any logistical
concerns are resolved if the new rule requires that an officer disclose only “the
charge that, at the time of arrest, the officer had probable cause to believe [the]
defendant committed.” See id. at 368 n.7. Prior to the issuance of a
complaint-warrant or arrest warrant, an officer cannot definitively determine
the charges that a given interrogee will face.
30
that he faces. In a case in which there is evidence of such bad-faith conduct on
the part of law enforcement officers, the trial court should consider such
conduct as part of the totality-of-the-circumstances test. The potential for
improper conduct by law enforcement to evade A.G.D. and Vincenty,
however, does not justify abandoning the core principles of those decisions.
Our dissenting colleagues unaccountably characterize our decision as a
change in our law on the right-against self-incrimination, venturing so far as to
suggest that the issue in this case is “whether we will abandon our own
jurisprudence,” post at ___ (slip op. at 14), and that our ruling creates a
“shortcut” that will “erode faith in our criminal justice system,” post at ___
(slip op. at 9). To the contrary, it is the dissent that presses for a change in our
jurisprudence: a substantial expansion of the rule stated in A.G.D. and
Vincenty that confers on suspects broader rights in the interrogation setting
than those conferred by federal Fifth Amendment jurisprudence and the State
Constitution. See Vincenty, 237 N.J. at 132-35; A.G.D., 178 N.J. at 68-69.
Were the dissent’s view to prevail, the rule imposed on law enforcement would
not comport with our prior precedent, but starkly depart from that precedent
and from the law of every other jurisdiction.
In short, we share Judge Susswein’s reservations about the Appellate
Division’s new rule requiring officers to tell an arrestee, not subject to a
31
complaint-warrant or arrest warrant, what charges he faces before interrogating
him. We decline to adopt that rule.
D.
Affording to the trial court’s findings of fact the deference which our
law requires, we affirm the court’s application of the totality-of-the-
circumstances standard to deny defendant’s motion to suppress his statement.
That standard requires that we “consider such factors as the defendant’s
‘age, education, and intelligence, advice as to constitutional rights, length of
detention, whether the questioning was repeated and prolonged in nature and
whether physical punishment or mental exhaustion was involved.’”
Nyhammer, 197 N.J. at 402 (quoting Presha, 163 N.J. at 313). The
interrogee’s “previous encounters with the law” may also be a relevant factor.
Presha, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)). In
short, “the root of the inquiry is whether a suspect’s will has been overborne
by police conduct.” Ibid.As the trial court noted and the record makes clear, defendant was read
his Miranda rights and waived those rights verbally and in writing. The court
found no evidence that before or during the two-and-a-half-hour interrogation,
the detectives threatened defendant, subjected him to mental exhaustion or
physical stress, ignored a request to leave, or acted in any manner to overbear
32
his will. As the trial court noted, defendant, who had prior experience with the
criminal justice system, repeatedly denied involvement in the shooting during
his interrogation.
We find the trial court’s findings to be supported by sufficient credible
evidence in the record. We concur with the trial court that the totality of the
circumstances warranted the denial of defendant’s motion to suppress his April
14, 2014 statement to police, and we accordingly reverse the Appellate
Division’s determination on that issue.
IV.
A.
We next consider the trial court’s decision to admit into evidence P.V.’s
testimony at the Wade/Henderson hearing at defendant’s trial.
Generally, we “review evidentiary rulings under a deferential standard
and will ‘uphold [the trial court’s] determinations absent a showing of an
abuse of discretion.’” State v. Trinidad, 241 N.J. 425, 448 (2020) (alteration
in original) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). We entrust to
trial judges “‘a wide latitude of judgment,’” and, therefore, the trial court’s
evidentiary ruling “will not be upset unless . . . there has been a clear error of
judgment.” State v. Koedatich, 112 N.J. 225, 313 (1988) (quoting State v.
Balthrop, 92 N.J. 542, 548 (1983) (Schreiber, J., dissenting)). We review de
33
novo the court’s legal determinations, including its ruling that the admission at
trial of P.V.’s testimony at the Wade/Henderson hearing did not violate
defendant’s confrontation rights. See State v. Wilson, 227 N.J. 534, 544
(2017).
The Appellate Division reversed the trial court’s evidentiary
determination on two grounds: that P.V.’s prior testimony did not meet the
requirements of N.J.R.E. 804(b)(1)(A), and that the admission of that
testimony violated defendant’s confrontation rights. We consider each issue in
turn.
B.
1.
N.J.R.E. 801(c) defines hearsay as a statement that “(1) the declarant
does not make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the statement.”
“Hearsay is generally inadmissible unless an exception applies.” State v.
Williamson, 246 N.J. 185, 199 (2021); accord N.J.R.E. 802.
Subject to the notice requirements of N.J.R.E. 807, N.J.R.E.
804(b)(1)(A) authorizes the admission of an unavailable declarant’s testimony
from a prior proceeding if the testimony
(i) was given by a witness at a prior trial of the same or
a different matter, or in a hearing or deposition taken in
34
compliance with law in the same or another proceeding;
and (ii) is now offered against a party who had an
opportunity and similar motive in the prior trial,
hearing or deposition to develop the testimony by
examination or cross-examination.
[N.J.R.E. 804(b)(1)(A).]
First, N.J.R.E. 804(b)(1)(A) requires that the witness who gave the prior
testimony be “unavailable,” as defined by N.J.R.E. 804(a). N.J.R.E. 804(a)
identifies four settings in which a witness is declared “unavailable” for
purposes of N.J.R.E. 804, “[e]xcept when the declarant’s unavailability has
been procured or wrongfully caused by the proponent of declarant’s statement
for the purpose of preventing declarant from attending or testifying.” In one of
those settings, a declarant who “persists in refusing to testify concerning the
subject matter of the statement despite an order of the court to do so” is
deemed “unavailable” to testify at trial. N.J.R.E. 804(a)(2); see also Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 804(a)
(2022) (“A declarant is ‘unavailable’ under N.J.R.E. 804(a)(2) if they refuse to
testify despite a court order to do so.”); State v. Cabbell, 207 N.J. 311, 336 (2011)
(“[A] witness is effectively absent from trial and does not ‘appear’ for cross-
examination if he invokes his Fifth Amendment privilege in response to every
question.”).
35
Second, N.J.R.E. 804(b)(1)(A) requires that the party against whom the
prior testimony is offered had an “opportunity” in the prior trial, hearing, or
deposition “to develop the testimony by examination or cross-examination.”
The 1991 Supreme Court Committee Comment to this rule makes clear that the
term, “develop the testimony by examination or cross-examination” is
“intended to include direct and redirect examination as well as cross-
examination as in Fed. R. Evid. 804(b)(1).” Official Comment to N.J.R.E.
804(b)(1)(A); see, e.g., United States v. Salim, 855 F.2d 944, 953-54 (2d Cir.
1988) (observing that, under Fed. R. Evid. 804(b)(1), a defendant is entitled to
“an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish”
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))).
Finally, N.J.R.E. 804(b)(1)(A) mandates that the party against whom the
prior testimony is offered has a “similar motive in the prior trial, hearing, or
deposition to develop the testimony by examination or cross-examination.”
Construing Fed. R. Evid. 804(b)(1), which is closely analogous to N.J.R.E.
804(b)(1)(A), 5 the Second Circuit has held that
5
Fed. R. Evid. 804(b)(1) authorizes the admission of an unavailable
declarant’s prior testimony that
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current
36
[t]he proper approach . . . in assessing similarity of
motive under Rule 804(b)(1) must consider whether the
party resisting the offered testimony at a pending
proceeding had at a prior proceeding an interest of
substantially similar intensity to prove (or disprove) the
same side of a substantially similar issue. The nature
of the two proceedings -- both what is at stake and the
applicable burden of proof -- and, to a lesser extent, the
cross-examination at the prior proceeding -- both what
was undertaken and what was available but forgone --
will be relevant though not conclusive on the ultimate
issue of similarity of motive.
[United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir.
1993) (en banc).]
As the Ninth Circuit has observed, “[t]he ‘similar motive’ requirement is
inherently factual and depends, at least in part, on the operative facts and legal
issues and on the context of the proceeding.” United States v. Geiger, 263
F.3d 1034, 1038 (9th Cir. 2001) (citing United States v. Salerno, 505 U.S. 317,
324-25 (1992)); see also United States v. Feldman, 761 F.2d 380, 385 (7th Cir.
1985) (“[A] court must evaluate not only the similarity of the issues, but also
the purpose for which the testimony is given.”).
The State, as the proponent of the evidence, bears the burden to
demonstrate both that the declarant is unavailable and that, at the prior trial,
proceeding or a different one; and (B) is now offered
against a party who had -- or, in a civil case, whose
predecessor in interest had -- an opportunity and similar
motive to develop it by direct, cross-, or redirect
examination.
37
hearing, or deposition, the defendant had an opportunity and similar motive to
cross-examine the declarant. See, e.g., State v. Maben, 132 N.J. 487, 500
(1993) (recognizing that the State is required “to prove unavailability and a
good-faith effort to procure the witness before allowing the introduction of
hearsay testimony”).
2.
We view the trial court’s admission of P.V.’s prior testimony to
constitute a proper application of N.J.R.E. 804(b)(1)(A).
First, the trial court correctly concluded that at the time of defendant’s
trial, P.V. was a declarant who “persists in refusing to testify concerning the
subject matter of the statement despite an order of the court to do so,” and was
therefore “unavailable” under N.J.R.E. 804(a)(2). P.V. confirmed in a hearing
outside the jury’s presence during trial that he would invoke his right against
self-incrimination under the Fifth Amendment if called as a witness. P.V.
maintained that position despite the State’s offer of immunity pursuant to
N.J.S.A. 2A:81-17.3 and the trial court’s order that he testify. Accordingly,
the State met the “unavailability” requirement of N.J.R.E. 804(a) under
subsection (a)(2).
38
Second, the Wade/Henderson hearing at which P.V. testified was a
“hearing” in the “same . . . proceeding” as defendant’s trial within the meaning
of N.J.R.E. 804(b)(1)(A).
Third, the State demonstrated that at the Wade/Henderson hearing,
defendant had “an opportunity . . . to develop the testimony by examination or
cross-examination.” N.J.R.E. 804(b)(1)(A). Indeed, when cross-examined by
defense counsel, P.V. claimed not to recall the April 9, 2014 shooting. He
suggested that some of the responses attributed to him in the transcript of his
statement constituted his mother’s comments, not his. P.V. implied that his
statement to police was affected by the medication that he was taking. He
stated that he did not have a close relationship with defendant or his brother.
P.V. denied any recollection of identifying defendant as the man who shot him.
He expressed fear of the prosecutor’s office and the police, and confirmed his
prior convictions and prison sentences. In short, defense counsel not only had
the opportunity to cross-examine P.V., as N.J.R.E. 804(b)(1)(A) requires, but
thoroughly and skillfully questioned P.V. The jury had the benefit of that
cross-examination when it considered P.V.’s Wade/Henderson hearing
testimony and assessed his credibility.
Fourth, the State also demonstrated that defendant had a “similar
motive” at the Wade/Henderson hearing “to develop the testimony by
39
examination or cross-examination.” N.J.R.E. 804(b)(1)(A). At the hearing, as
at trial, defendant’s motive was to impeach P.V.’s credibility, underscore
P.V.’s claimed lack of recollection, suggest that police coercion was a factor in
P.V.’s identification of defendant, and attack P.V.’s statement as unreliable.
In short, defendant’s objectives in the two settings were similar, if not
identical.
Accordingly, the trial court properly ruled that P.V.’s prior testimony
was admissible pursuant to N.J.R.E. 804(b)(1)(A).
C.
1.
We next consider defendant’s argument that the introduction of P.V.’s
statement violated his rights under the Confrontation Clause.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI; see also
N.J. Const. art. I, ¶ 10 (“In all criminal prosecutions the accused shall have the
right . . . to be confronted with the witnesses against him . . . .”).
Our confrontation jurisprudence “traditionally has relied on federal case
law to ensure that the two provisions provide equivalent protection.” State v.
Roach, 219 N.J. 58, 74 (2014); see also State v. Miller, 170 N.J. 417, 425
(2002) (explaining that “[t]he New Jersey Constitution contains a cognate
40
guarantee” to that of the Sixth Amendment); Cabbell, 207 N.J. at 328 n.11
(noting that for purposes of the Court’s discussion in that case, “references to
the Sixth Amendment are interchangeable with Article I, Paragraph 10 of our
State Constitution”).
In Crawford v. Washington, the United States Supreme Court held that
the framers of the Constitution intended the Confrontation Clause to bar the
admission of “testimonial statements of a witness who did not appear at trial
unless [the declarant is] unavailable to testify, and the defendant had . . . a
prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004).
The State need not demonstrate that the defendant undermined the
credibility of the unavailable witness at the prior proceeding to satisfy the
constitutional test; as the Supreme Court has noted, “successful cross-
examination is not the constitutional guarantee.” United States v. Owens, 484
U.S. 554, 560 (1988); accord Cabbell, 207 N.J. at 337. Instead, “the
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Fensterer, 474 U.S. at 20.
Although “Crawford does not provide a specific standard for determining
whether a defendant had an opportunity to cross-examine a witness, . . . it
41
does suggest that the prior opportunity must be adequate.” Rolan v. Coleman,
680 F.3d 311, 327 (3d Cir. 2012) (citing Crawford, 541 U.S. at 57).
Federal courts have held that a witness’s testimony at a preliminary
hearing, such as the Wade/Henderson hearing at issue here, can provide the
constitutionally mandated opportunity to cross-examine. See Gibbs v.
Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not
offend the Confrontation Clause when it introduced the preliminary hearing
testimony of a witness unavailable at trial as long as the defendant had a prior
opportunity to cross-examine), cert. denied, 142 S. Ct. 453 (2021); United
States v. Ralston, 973 F.3d 896, 911 (8th Cir. 2020) (affirming the district
court’s decision rejecting a confrontation challenge to an unavailable witness’s
testimony at a preliminary hearing); Williams v. Bauman, 759 F.3d 630, 634-
35 (6th Cir. 2014) (holding that the defendant’s confrontation rights were not
violated by the admission of preliminary hearing testimony of a witness who
died before trial); Rolan, 680 F.3d at 326-37 (affirming the district court’s
holding that the defendant had an opportunity to cross-examine a witness at a
prior trial and preliminary hearing that satisfied the Confrontation Clause).
Moreover, the defendant may be deemed to have had a prior opportunity
for cross-examination even if the witness denies recollection of relevant
events. The Supreme Court has noted that the Confrontation Clause provides
42
“no guarantee that every witness called by the prosecution will refrain from
giving testimony that is marred by forgetfulness, confusion, or evasion,” but
rather “is generally satisfied when the defense is given a full and fair
opportunity to probe and expose these infirmities through cross-examination,
thereby calling to the attention of the factfinder the reasons for giving scant
weight to the witness’ testimony.” Owens, 484 U.S. at 558 (quoting Fensterer,
474 U.S. at 21-22); accord State v. Brown, 138 N.J. 481, 543 (1994) (“[A]
witness’s feigned lack of recollection . . . [does] not rise to the level of
denying a defendant’s federal and state constitutional right to confront
witnesses.”). As Justice Harlan has observed,
The fact that the witness, though physically available,
cannot recall either the underlying events that are the
subject of an extra-judicial statement or previous
testimony or recollect the circumstances under which
the statement was given, does not have Sixth
Amendment consequence. The prosecution has no less
fulfilled its obligation simply because a witness has a
lapse of memory. The witness is, in my view, available.
To the extent that the witness is, in a practical sense,
unavailable for cross-examination on the relevant facts,
. . . I think confrontation is nonetheless satisfied.
[California v. Green, 399 U.S. 149, 188-89 (1970)
(Harlan, J., concurring).]
In Owens, the Supreme Court held that “[i]t is sufficient [under the
Confrontation Clause] that the defendant has the opportunity to bring out such
43
matters as the witness’ bias, his lack of care and attentiveness, his poor
eyesight, and even (what is often a prime objective of cross-examination . . . )
the very fact that he has a bad memory.” 484 U.S. at 559 (citation omitted).
Moreover, “[t]he weapons available to impugn the witness’ statement when
memory loss is asserted will of course not always achieve success, but
successful cross-examination is not the constitutional guarantee.” Id. at 560;
see also United States v. Milton, 8 F.3d 39, 47 (D.C. Cir. 1993) (“When a
witness has forgotten the basis for and the giving of testimony under oath in an
earlier proceeding and that testimony is then introduced into evidence, defense
questioning, though impaired, is not futile for the reasons given in Owens.”).
Accordingly, the Confrontation Clause is not violated by the admission
of an unavailable witness’s prior testimony simply because that witness claims
that he does not recall the event at issue. Owens, 484 U.S. at 559.
2.
We agree with the trial court that P.V.’s Wade/Henderson hearing
testimony met the requirements of the Confrontation Clause.
First, just as P.V. was an “unavailable” declarant as defined in N.J.R.E.
804(a)(2), he was “unavailable to testify” at trial for purposes of the
Confrontation Clause. See Crawford, 541 U.S. at 53.
44
Second, defendant had the adequate “prior opportunity for cross-
examination” envisioned by the Supreme Court’s confrontation jurisprudence.
See ibid.; Owens, 484 U.S. at 558.
We disagree with the Appellate Division’s conclusion that the trial
court’s admission of P.V.’s Wade/Henderson hearing testimony violated the
Confrontation Clause because “[d]efendant did not have the opportunity to
cross-examine [P.V.] about his statement to police -- either at the pretrial
hearing or in front of the jury,” and had “nothing to cross-examine [P.V.]
about at the Rule 104 hearing.” Sims, 466 N.J. Super. at 377-78.
To the contrary, at the Wade/Henderson hearing, defendant had the
opportunity to attack the credibility of P.V.’s statement identifying defendant
as the shooter. Indeed, defendant elicited P.V.’s testimony disclaiming
recollection of any statement, implying that comments attributed to him were
his mother’s, and inferring that he acted out of fear of some of the
investigating officers. By virtue of the direct and cross-examination at the
Wade/Henderson hearing, the jury was fully informed that P.V. denied any
recollection of the shooting or his statement to police. See Owens, 484 U.S. at
558 (noting that the Confrontation Clause is satisfied when the defendant has
the “full and fair opportunity to probe and expose” the witness’s claim not to
45
recall critical events, thus underscoring for the jury the reasons why it should
give his testimony little or no weight (quoting Fensterer, 474 U.S. at 21-22)).
Nor do we subscribe to the Appellate Division’s view that defendant’s
rights were violated because he “never had the opportunity to cross-examine
the victim before the factfinder that was to decide his fate.” Sims, 466 N.J.
Super. at 378. If the Confrontation Clause required every declarant to appear
before the jury for cross-examination, it would prohibit the admission of an
unavailable witness’s prior testimony as an exception to the hearsay rule,
which it clearly does not. As the Supreme Court has observed, it has “never
insisted on an actual face-to-face encounter at trial in every instance in which
testimony is admitted against a defendant” and has instead “repeatedly held
that the Clause permits, where necessary, the admission of certain hearsay
statements against a defendant despite the defendant’s inability to confront the
declarant at trial.” Maryland v. Craig, 497 U.S. 836, 847-48 (1990).
Finally, we do not share the Appellate Division’s view that the trial court
improperly admitted P.V.’s April 13, 2014 statement to police at the hospital
through the State’s questioning of P.V. at the Wade/Henderson hearing. Sims,
466 N.J. Super. at 371-72, 376-78. P.V.’s April 13, 2014 statement was not
offered into evidence -- let alone admitted into evidence -- at defendant’s
46
trial. 6 No recording or transcript of that statement was presented to the jury.
When the trial court overruled defendant’s evidentiary and constitutional
objections to the admission of P.V.’s Wade/Henderson testimony, it was not
asked to exclude any portion of that testimony on the ground that questions
posed to P.V. revealed the contents of his prior statement to police. Neither
the Appellate Division nor defendant cited authority that would require the
exclusion of the prior testimony on that ground. 7
6
Our dissenting colleagues contend that P.V.’s statement to police in the
hospital was admitted into evidence at trial. Post at ___ n.5 (slip op. at 16
n.5). As the record reveals, that is simply incorrect. Immediately after the
trial court told the jury that it would hear P.V.’s statement from “a prior
proceeding” and that it may consider it as substantive evidence, the State
presented P.V.’s testimony at the Wade/Henderson hearing during Weisbrot’s
direct examination. The trial court’s comments clearly referred to P.V.’s prior
testimony, not the hospital statement. The State made no attempt to introduce
the transcript of P.V.’s hospital statement at trial into evidence, and the jury
was not presented with any portion of that statement, other than in the
prosecutor’s reading of questions posed to P.V. during his testimony at the
Wade/Henderson hearing.
7
The decisions by this Court cited by the Appellate Division on this point do
not suggest that prior testimony admissible under N.J.R.E. 804(b)(1) violates
the Confrontation Clause because questions posed to the witness in the prior
trial, hearing, or deposition incorporated the contents of an out-of-court
statement. See generally Sims, 466 N.J. Super. at 375-78. In Cabbell, we held
that the defendant’s confrontation rights were violated because the trial court
admitted the out-of-court statement of a witness who was available at trial and
subject to direct examination but did not provide the defendant the opportunity
to cross-examine the witness. 207 N.J. at 329-33. In State v. Coder, we held
that the admission of an unavailable child witness’s out-of-court statement
pursuant to the “tender years” exception to the hearsay rule, N.J.R.E.
803(c)(27), did not violate the Confrontation Clause. 198 N.J. 451, 467-70
47
Trial courts should be alert to the potential for the improper admission of
hearsay within hearsay and for confrontation issues that may arise in such
settings. See N.J.R.E. 805 (“Hearsay within hearsay is not excluded by the
rule against hearsay if each part of the combined statements conforms with an
exception to the rule.”). In this case, we find no such error.
Accordingly, we reverse the Appellate Division’s determination that the
admission of P.V.’s Wade/Henderson hearing testimony at trial violated the
hearsay rule and offended the Confrontation Clause.
V.
The judgment of the Appellate Division is reversed, and the matter is
remanded to the appellate court for its review of the prosecutorial misconduct
and sentencing issues raised by defendant on appeal.
CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE
PATTERSON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICE
PIERRE-LOUIS joins.
(2009). Finally, in Nyhammer, we affirmed the admission of a child victim’s
out-of-court statement because the defendant had the opportunity to cross-
examine the victim at trial and elected not to exercise that right. 197 N.J. at
389.
48
State of New Jersey,
Plaintiff-Appellant,
v.
Anthony Sims, Jr.,
Defendant-Respondent.
JUSTICE ALBIN, dissenting.
In a free society that values individual liberty, no person should be taken
from his home or off the streets by the police, placed in handcuffs and kept in
custody, and not told the reason for his arrest. Most people will be surprised
to learn that they can be detained without explanation for a period of hours, if
not longer, as the majority now holds.
Four law enforcement officers arrested Anthony Sims, but not one told
him why he was under arrest -- not even when he asked for an explanation.
Sims was handcuffed, placed in a police vehicle, and transported to a satellite
office of the Monmouth County Prosecutor’s Office -- not knowing why he
was in custody. In that satellite office, the interrogating officers advised Sims
1
of his Miranda1 rights and elicited from him a waiver of his rights without
revealing to him that he was in custody for the attempted murder of P.V.
Concealing from Sims the charges that he was facing did not comport with the
guarantees afforded to the accused under our state law against self-
incrimination or our state’s jurisprudence.
When police officers make an arrest based on probable cause, they must
have a reason for doing so -- they must have determined that the person
arrested violated a specific law. That being the case, the officers should have
no difficulty telling the person the charge or charges that they believe justify
the defendant’s detention. Even when a complaint-warrant has not been
secured in advance, no interrogation should proceed until the accused is told
the charges for which he is then held in custody. Without that critical
information, a defendant cannot intelligently decide whether to waive his right
against self-incrimination. That other charges may develop during the
investigation is no excuse for officers to withhold the specific charges that
prompted a defendant’s arrest.
I therefore would affirm the Appellate Division’s suppression of Sims’s
statement.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
I would also affirm the Appellate Division’s suppression of the out-of-
court statements made by P.V. incriminating Sims. P.V. testified at the Wade2
hearing that he did not recall making those statements against Sims and later
refused to testify before the jury, even when offered immunity and threatened
with contempt. Sims therefore was denied the opportunity to cross-examine
P.V. at trial. Sims’s cross-examination of P.V. at the Wade hearing was not an
adequate substitute for his Sixth Amendment confrontation rights at trial. At
the Wade hearing, Sims did not have a similar opportunity or motive to cross-
examine P.V. as he would have had at trial.
I would reverse Sims’s conviction, substantially for the reasons given by
the Appellate Division. Accordingly, I respectfully dissent.
I.
New Jersey’s privilege against self-incrimination is codified in our
statutory law, N.J.S.A. 2A:84A-19, and rules of evidence, N.J.R.E. 503, and
“is so venerated and deeply rooted in this state’s common law that it has been
deemed unnecessary to include the privilege in our State Constitution.” State
v. O’Neill, 193 N.J. 148, 176 (2007) (citing State v. Reed, 133 N.J. 237, 250
(1993)). Indeed, “[w]e have treated our state privilege as though it were of
2
United States v. Wade, 388 U.S. 218 (1967).
3
constitutional magnitude.” Ibid. In our case law, we have highlighted “[t]he
textual differences between the plain language of our state privilege and the
Fifth Amendment” and have found that our state law privilege “offers broader
protection than its Fifth Amendment federal counterpart.”3 Id. at 176-77
(citing State v. Muhammad, 182 N.J. 551, 568 (2005)). That is a point largely
ignored by the majority.
The issue is not whether we should adhere to federal jurisprudence but
whether we will abandon our own jurisprudence. If our way is lighted by our
jurisprudence, then we should find that, before the start of an interrogation, the
failure to advise a defendant of the specific charges that were the basis for his
arrest is a violation of our state law against self-incrimination. In suppressing
Sims’s statement, the Appellate Division did nothing more than follow the
inescapable logic of this Court’s case law.
In State v. A.G.D., a detective obtained a warrant to arrest the defendant
for the sexual abuse of a child. 178 N.J. 56, 59-60 (2003). The detective and
another detective visited the defendant’s home and explained to him that they
3
N.J.S.A. 2A:84A-19 and N.J.R.E. 503, provide in identical language that
“every natural person has a right to refuse to disclose in an action or to a
police officer or other official any matter that will incriminate him or expose
him to a penalty or a forfeiture of his estate.” In contrast, the Fifth
Amendment to the United States Constitution provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness against himself.”
4
wanted to question him about sexual abuse allegations, and he accompanied
them to the prosecutor’s office. Ibid. The detectives kept from the defendant
the arrest warrant they had in hand and did not advise him he was under arrest.
Id. at 59. Instead, in the usual course, the detectives informed the defendant of
his Miranda rights, and the defendant waived those rights without knowing his
true predicament. Id. at 60. During the interrogation that followed, the
defendant incriminated himself. Ibid.We found that, in securing a waiver of rights from the defendant, the
detectives deprived him of “critically important information” -- knowledge of
the criminal complaint filed against him and of the arrest warrant in the
detective’s pocket. Id. at 68. We held that the detectives had concealed
“information indispensable to a knowing and intelligent waiver of rights.”
Ibid. We concluded that “[w]ithout advising the [defendant] of his true
status,” the State did not satisfy its burden of proving that he “exercised an
informed waiver of rights,” and accordingly we suppressed his incriminating
statements. Id. at 68-69.
In deciding A.G.D., we relied on “the New Jersey common law privilege
against self-incrimination[, which] affords greater protection to an individual
than that accorded under the federal privilege.” Id. at 67 (quoting In re Grand
Jury Proc. of Guarino, 104 N.J. 218, 229 (1986)). We stated that our Court has
5
“actively embraced the opportunity to move beyond the guidelines of federal
directives in pursuit of an unyielding commitment to ensure the proper
admissibility of confessions.” Ibid. (quoting Reed, 133 N.J. at 252).
In State v. Vincenty, we elaborated on A.G.D., stating that our decision
in that case “calls for law enforcement officials to make a simple declaratory
statement at the outset of an interrogation that informs a defendant of the
essence of the charges filed against him.” 237 N.J. 122, 134 (2019). “That
information,” we added, “should not be woven into accusatory questions posed
during the interview.” Ibid. The defendant in Vincenty, as in A.G.D., was
“[u]naware that charges had been filed against him” in a criminal complaint
when he waived his right against self-incrimination. Id. at 128-29, 134. We
pointedly stated in Vincenty that detectives “failed to inform [the defendant] of
the specific criminal charges filed against him” and withheld from him
“critically important information.” Id. at 135. Because the detectives
“deprived [the defendant] of the ability to knowingly and voluntarily waive the
right against self-incrimination,” we suppressed his statement. Id. at 135-36.
The only distinction between A.G.D. and Vincenty and this case is that,
here, the detectives had probable cause to charge Sims with attempted murder
but did not bother to secure a judicially authorized criminal complaint and
arrest warrant before taking Sims into custody and questioning him. The
6
detectives knew why they had arrested Sims, but Sims did not. The detectives
purposely withheld from Sims “critically important information” --
“information indispensable to a knowing and intelligent waiver of rights.”
A.G.D., 178 N.J. at 68; see also Vincenty, 237 N.J. at 135.
This case is unlike State v. Nyhammer, where the defendant was merely
a suspect -- and not under arrest -- before the police began questioning him.
197 N.J. 383, 404-05 (2009). There, we held that the police did not have to
disclose their motives to the defendant before commencing the interrogation.
Ibid. In Nyhammer, we drew the line for disclosure at arrest because an arrest
is “an objectively verifiable and distinctive step, a bright line, when the forces
of the state stand arrayed against the individual.” Id. at 404. Suspect status,
we noted, is “an elusive concept that will vary depending on subjective
considerations of different police officers.” Id. at 405.
Sims was more than a suspect. He was under arrest. He was the
accused. The forces of the State were already arrayed against him. The
detectives were going to charge Sims with attempted murder whether or not he
submitted to questioning. Surely, the detectives’ timing of when to obtain the
arrest warrant and criminal complaint should not be the decisive factor in
determining whether the accused is provided the critical information necessary
to make an informed decision whether to waive his rights.
7
I agree with the majority that “officers need not speculate about
additional charges that may later be brought or the potential amendment of
pending charges” when interrogating a defendant. Ante at ___ (slip op. at 28)
(citing Nyhammer, 197 N.J. at 404-05; A.G.D., 178 N.J. at 68-69). In my
view, the officers simply must act in good faith, be honest with the defendant,
and advise him of the charge or charges for which he was arrested. In this
case, no one seems to dispute that the detectives arrested defendant for
attempted murder. The detectives denied Sims critical information necessary
to make an informed decision whether to waive his rights.
The majority opinion encourages law enforcement officers to game the
system. Officers will now know that a delay in the filing of the criminal
complaint will allow them to withhold from the arrested defendant the true
nature of the charges before the interrogation begins, as occurred here. The
State should be made to walk square corners. The shortcut the majority
permits, allowing the police to arrest a person and keep him in the dark about
the reasons for his arrest, will erode faith in our criminal justice system.
The State failed to prove the voluntariness of Sims’s statement beyond a
reasonable doubt as required under our law. See State v. Burris, 145 N.J. 509,
534 (1996). Accordingly, the Appellate Division correctly ruled that his
statement should have been suppressed and not admitted at trial.
8
II.
Four days after he was shot multiple times in his grandmother’s
driveway, P.V. gave a signed statement to the detectives in the hospital where
he was recovering from his wounds. In the statement, P.V. named Sims,
whom he had known for more than ten years, as the shooter and identified a
photograph of Sims.
At the Wade hearing, P.V. denied having any recollection of the
shooting or of making any of the statements recorded by the police. P.V. then
refused to testify at trial, despite offers of immunity. The jury was denied the
opportunity to see P.V. on the stand and to assess his credibility firsthand.
The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. “A witness’s
testimony against a defendant is thus inadmissible unless the witness appears
at trial or, if the witness is unavailable, the defendant had a prior opportunity
for cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309
(2009) (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)). A prior
opportunity for cross-examination means that the defendant must have had the
opportunity to conduct a meaningful cross-examination. See United States v.
Owens, 484 U.S. 554, 561-62 (1988). Even when a witness takes the stand in
9
a criminal trial, a defendant’s confrontation rights are not satisfied unless he is
given “a full and fair opportunity to probe and expose [the] infirmities” of the
witness’s testimony. See id. at 558 (quoting Delaware v. Fensterer, 474 U.S.
15, 22 (1985)).
A witness’s claim of lack of recollection will not bar the hearsay
admission of some out-of-court statements, provided the witness testifies at
trial, permitting the jury to gauge the witness’s credibility. Ibid. However,
“[i]n that situation . . . the traditional protections of the oath, cross-
examination, and opportunity for the jury to observe the witness’s demeanor
satisfy the constitutional requirements.” Id. at 560 (citing California v. Green,
399 U.S. 149, 158-61 (1970)).
For example, in Owens, from his hospital room, the victim-witness
provided officers a statement identifying Owens as the perpetrator of an
assault against him. Id. at 556. At trial, however, the witness could no longer
recall seeing his assailant. Ibid. The Court found the cross-examination of the
witness before the jury to be sufficient for Confrontation Clause purposes
because, in that scenario, the jury had the opportunity to “be persuaded that
[the witness’s] opinion [was] as unreliable as his memory.” Id. at 558 (quoting
Fensterer, 474 U.S. at 19).
10
Similarly, under the New Jersey exception to the hearsay rule, a
witness’s prior inconsistent statements are admissible to allow the jury to
determine whether “the witness is lying, and to give the jury an alternative
account of the events that it may choose to use as substantive evidence rather
than the account offered by the witness. The jury, however, must observe the
witness and make a decision about which account is true.” State v. Brown,
138 N.J. 481, 544 (1994).
Under the Confrontation Clause and our evidence rules, P.V.’s
statements to the detectives at the hospital were admissible at the Wade
hearing, despite his claimed lack of recollection. See Owens, 484 U.S. at 560-
62; Brown, 138 N.J. at 542-43. However, unlike in Owens and Brown, here
P.V. did not appear at trial. The jury did not have the opportunity to hear from
or scrutinize P.V. on the witness stand to determine whether his lack of
memory at the Wade hearing was feigned or real or whether he gave an honest
or accurate account of his identification of Sims as his assailant at the hospital.
At the time of Sims’s trial, P.V. was awaiting trial for murdering Sims’s
brother and refused to testify. P.V.’s hearsay statement at the hospital was
laundered through the Wade hearing intact and presented fresh at trial but
without a witness to confront. Under the circumstances in this case, the
damning hearsay statement was too many steps removed from its source to be
11
credited for Confrontation Clause purposes. See Preston v. Superintendent
Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018) (“[T]he use of a witness’s
prior statement against a criminal defendant violates the defendant’s
Confrontation Clause rights when the witness refuses to answer any
substantive questions on cross-examination.”). The bootstrapping of the
hearsay statement deprived Sims of his right of cross-examination at trial.
Critical to that analysis is that Sims did not have the “prior opportunity”
to meaningfully cross-examine P.V. at the Wade hearing in the way he would
have if P.V. had testified at trial.
A Wade hearing has a limited purpose. It “is to examine police
procedures surrounding an out-of-court identification of the defendant for a
taint of suggestiveness,” Lynn v. Bliden, 443 F.3d 238, 249 (2d Cir. 2006),
and, if the procedures were suggestive, to ascertain the identification’s
reliability, State v. Henderson, 208 N.J. 208, 238 (2011). It “is not to
determine whether there are ‘inconsistent identifications’ nor to obtain more
fodder for cross-examination.” Lynn, 443 F.3d at 249. Our judges understand
the limitations of a Wade hearing; it is not an occasion for attorneys to
rummage for discovery that might be useful at trial for impeachment purposes.
Judges corral attorneys who wander afield. Moreover, attorneys ordinarily do
not cross-examine a witness at a Wade hearing with the expectation that the
12
witness, when called to the stand at trial, will refuse to testify, disregarding a
grant of immunity and the threat of a contempt citation. In short, the
permissible parameters of cross-examination at a Wade hearing and at a trial
are not co-extensive. Sims’s attorney made clear that his cross-examination of
P.V. at trial would have been far more extensive than the one at the Wade
hearing.
Our evidence rules do not permit an unavailable witness’s prior
testimony to be used against a defendant unless the defendant “had an
opportunity and similar motive in the prior trial, hearing or deposition to
develop the testimony by examination or cross-examination.” N.J.R.E.
804(b)(1)(A). For Confrontation Clause purposes as well, a defendant who
does not have a similar opportunity or motive to cross-examine the witness at
an earlier hearing will not have had the meaningful opportunity to develop the
testimony for trial.
That is what occurred here. Sims did not have the same motive or
opportunity to cross-examine P.V. at the Wade hearing as he would have at
trial had P.V. testified. Sims therefore was denied the meaningful opportunity
for cross-examination guaranteed by the Sixth Amendment’s Confrontation
Clause. See Owens, 484 U.S. at 559-602.
13
Last, none of the circuit cases cited by the majority support its
conclusion that a witness’s statement at a Wade hearing is admissible at trial
when the witness is unavailable. Ante at ___ (slip op. at 41-42). Each of the
four cases cited by the majority concerned a preliminary hearing, a proceeding
that is far different and broader in scope than a Wade hearing.4
For example, criminal prosecutions in California may proceed by way of
the filing of an information rather than the return of a grand jury indictment.
An accused charged by information is given a preliminary hearing. At the
preliminary hearing, the accused has the right of “confrontation and cross-
examination of hostile witnesses, and the opportunity to personally appear and
affirmatively present exculpatory evidence.” Hawkins v. Superior Ct., 586
P.2d 916, 917-18 (Cal. 1978); see also Holman v. Superior Ct., 629 P.2d 14,
18 (Cal. 1981) (Bird, C.J., concurring) (“[T]he functions of the preliminary
4
In addition, three of the cases arose in the context of federal habeas corpus in
which the federal courts’ power to review a state law conviction is extremely
limited. See Gibbs v. Covello, 996 F.3d 596, 603 (9th Cir.) (explaining that
the standard governing habeas corpus limits the federal courts’ power of
review and concluding that the Confrontation Clause claim “is a close one, and
if we were answering that question de novo, we might” find there to be a
violation), cert. denied, 142 S. Ct. 453 (2021); Williams v. Bauman, 759 F.3d
630, 636 (6th Cir. 2014) (explaining that, given a federal court’s limited
remedial powers on habeas corpus review, so long as a state court decision on
a Confrontation Clause issue leaves “room for reasonable debate,” it must be
upheld, “even if it turns out to be wrong”).
14
hearing in our criminal process are broad and complex.”); State ex rel.
Whitehead v. Vescovi-Dial, 950 P.2d 818, 820 (N.M. Ct. App. 1997) (“[T]he
preliminary hearing legitimately may provide an opportunity for discovery by
either side; it may help a party in preparation for future impeachment; it also
may be used to perpetuate testimony for later use at trial.” (citing 2 Wayne
LaFave & Jerold H. Israel, Criminal Procedure §§ 14.1(b), (c), (d) (1984))).
A preliminary hearing is not comparable to a Wade hearing. The
majority cannot point to a single reported case from any jurisdiction where the
prosecution was permitted to introduce at trial an unavailable witness’s
testimony at a Wade hearing.5
5
The majority is incorrect in declaring that “P.V.’s April 13, 2014 statement
was not offered into evidence -- let alone admitted into evidence -- at
defendant’s trial.” Ante at ___ (slip op. at 46-47). The purpose of the
prosecutor’s reading to the jury the Wade hearing transcript was to get into
evidence P.V.’s hospital statement. The Wade hearing transcript had no other
value. At the Wade hearing, P.V. had no recollection of the incident or his
statement to the detectives. The transcript provided the colloquy between the
prosecutor and P.V., which included the substance of P.V.’s statement made to
the police at the hospital. Tellingly, the trial court instructed the jury that
P.V.’s statement was in evidence, stating “you will be afforded the opportunity
to hear [P.V.]’s statement from a prior proceeding that you may now consider
as substantive evidence.” (emphasis added). In addition, in response to a jury
question, the trial court made clear “that the statement of the victim at the
hospital is subsumed on this record within the testimony of Detective
Weisbrot.”
15
III.
In summary, I would affirm the Appellate Division and reverse
defendant’s conviction because the admission of Sims’s statement to the
detectives violated his right against self-incrimination and because the
admission of P.V.’s hearsay statements to the detectives implicating Sims
violated Sims’s confrontation rights.
I therefore respectfully dissent.
16