STATE OF NEW JERSEY VS. GERRY THOMAS (17-05-0491, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5678-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERRY THOMAS,
Defendant-Appellant.
________________________
Argued March 1, 2021 – Decided May 24, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 17-05-0491.
Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Margaret McLane, of
counsel and on the briefs).
Mark Niedziela, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Mark Niedziela, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
After the trial judge denied defendant Gerry Thomas's motion to suppress
his second custodial statement to police, a jury found defendant guilty of two
counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); one count of
second-degree arson, N.J.S.A. 2C:17-1(a)(1) and (a)(2); and, one count of first-
degree attempted robbery, N.J.S.A. 2C:5-1(a)(3), N.J.S.A. 2C:15-1(a)(1). The
convictions arose from defendant's alleged participation in a robbery that
resulted in the murder of two victims and the destruction of their remains
through the torching of the car in which they were killed. After his convictions,
the trial judge sentenced defendant to an aggregate term of eighty years subject
to a period of parole ineligibility under the No Early Release Act, N.J.S.A.
2C:43-7.2.
Defendant appeals from his conviction and sentence and argues the
following points:
POINT I
DEFENDANT'S SECOND STATEMENT WAS
TAKEN IN VIOLATION OF HIS RIGHT AGAINST
SELF-INCRIMINATION, WAS INVOLUNTARY,
AND WAS UNRELIABLE. THE TRIAL COURT
ERRED IN DENYING THE MOTION TO SUPPRESS
HIS STATEMENT.
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POINT II
THE MOTION FOR A JUDGMENT OF ACQUITTAL
ON ATTEMPTED ROBBERY SHOULD HAVE
BEEN GRANTED BECAUSE THE STATE FAILED
TO PRESENT ANY EVIDENCE THAT
DEFENDANT INTENDED HIS CO-DEFENDANT
TO COMMIT A ROBBERY OR THAT THE CO-
DEFENDANT ACTUALLY COMMITTED AN
ATTEMPTED ROBBERY.
POINT III
THE JURY INSTRUCTIONS INCORRECTLY
FAILED TO SPECIFY THAT THE JURY HAD TO
UNANIMOUSLY AGREE ON THE VICTIM OF THE
ATTEMPTED ROBBERY. THE ATTEMPTED
ROBBERY AND FELONY MURDER CHARGES
MUST BE REVERSED. (NOT RAISED BELOW).
POINT IV
THE FAILURE TO INSTRUCT THE JURY ON AN
ELEMENT OF FELONY MURDER AND TO
TAILOR THE FELONY MURDER INSTRUCTIONS
TO THE UNUSUAL FACTS OF THIS CASE
REQUIRES REVERSAL OF THE FELONY
MURDER CONVICTIONS. (NOT RAISED
BELOW).
POINT V
DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE JURY HAD
UNRESTRICTED ACCESS TO THE COMPILATION
OF SURVEILLANCE VIDEOS IN THE JURY
ROOM. (NOT RAISED BELOW).
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POINT VI
THE DEFENDANT'S AGGREGATE SENTENCE OF
EIGHTY YEARS WITH AN 85% PAROLE
DISQUALIFIER IS MANIFESTLY EXCESSIVE
AND DISPARATE WITH THE CONCURRENT
EIGHTEEN-YEAR SENTENCE IMPOSED ON THE
CO-DEFENDANT.
POINT [VII]1
[DEFENDANT'S] SIXTH AMENDMENT RIGHT
UNDER THE UNITED STATES CONSTITUTION
AND ARTICLE I PAR. 10 OF THE NEW JERSEY
STATE CONSTITUTION WAS VIOLATED
BECAUSE TRIAL COUNSEL RENDERED
INEFFECTIVE [ASSISTANCE] OF COUNSEL FOR
HIS DUAL REPRESENTATION SERVING AS THE
VICTIM'S FAMILY [ATTORNEY] AS WELL AS
THE DEFENDANT['S ATTORNEY]. (NOT RAISED
BELOW).
We conclude that the trial judge erred by denying defendant's motion to
suppress his second statement to the police because during their second
interrogation of defendant they repeatedly implied that he could avoid being
charged with the subject murders if he responded to their questions. For that
reason, we reverse the motion's denial, vacate defendant's convictions, and
remand for a new trial.
1
For clarity, we renumbered this last point, which defendant raised in a p ro se
supplemental brief.
A-5678-17
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I.
In response to defendant's motion, the trial judge held a Miranda2 hearing
over three days at which two of the Paterson Police Department detectives who
took his statements, Richard Martinez and Steven Leishman, testified about the
interviews. Detective Sabrina McKoy with the Passaic County Prosecutor's
Office also testified as to a letter her office received from defendant while he
was in jail awaiting trial. The facts developed at that hearing are summarized
as follows.
The Paterson Police Department became interested in defendant's co-
defendant, Clarence Williams, on March 10, 2017, after an individual reported
that he had been the victim in an unrelated robbery. Police identified Williams
as a suspect for that robbery, and sometime between March 10 and March 17,
2017, they charged Williams with robbery and weapons offenses and issued a
warrant for his arrest.
On March 17, 2017, two bodies were discovered inside a burned parked
car in Paterson. Phone records disclosed that Williams had exchanged multiple
phone calls with one of the victims just prior to the time of the homicides. As a
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5678-17
5
result, Williams became a suspect in the murders. Using information from the
cell phone, law enforcement was able to locate Williams.
On March 20, 2017, police officers executed the warrant for Williams by
forcibly entering his house. When they entered the home, Williams was in the
living room and defendant was in a bedroom. Officers handcuffed both men and
drove them to the detective bureau in separate police cars.
Upon arrival at the bureau, defendant and Williams were placed in
separate interrogation rooms; Martinez and Detective Bermudez first
interviewed defendant, and Sergeant Abdelmonin Hamdeh and Leishman
interviewed Williams. After defendant was placed inside the interview room,
its door was closed and defendant remained seated and unrestrained.
Martinez read defendant his Miranda rights and defendant verbally
indicated he understood them. Defendant also signed the form acknowledging
he understood his rights, and that he wanted to waive them by speaking to the
police. Martinez believed defendant understood the situation and he observed
that defendant was coherent, answered questions appropriately, and did not
appear intoxicated.
Defendant was then read the waiver portion of the Miranda form and asked
by Martinez "Do you want to talk about the incident?" Defendant responded by
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asking "What incident" and was told by Martinez it involved "a boy['s] . . .
dispute with somebody outside their house."
Later in the interrogation, Bermudez stated that the detectives had
"something else [they] want[ed] to talk about, but you understand these rights,
right? The second portion, too, that nobody's made threats or anything about
any threats or used any force against you?" With that, the following exchange
occurred:
[DEFENDANT]: So, waive my right to mean
what?
DETECTIVE MARTINEZ: We've got to talk
about something. Another incident that happened.
[DEFENDANT]: All right.
DETECTIVE MARTINEZ: Well, you want to
talk? You want to talk? I mean, sign or (indiscernible).
[DEFENDANT]: What did that—
what did it mean, though?
DETECTIVE MARTINEZ: That you're agreeing
to talk and nobody has used force or pressure against
you.
[DEFENDANT]: Yeah.
A-5678-17
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The detective began to question defendant and eventually addressed the
subject incident. Defendant indicated that he did not know what the detective
was talking about and denied being in the location that the detectives described.
Later in the interview, Hamdeh joined the session and told defendant that
Williams implicated defendant in the crime, which Hamdeh described as two
robberies. Martinez knew that information to be false, but they confronted him
with that as part of their "tactics used during interrogations." Defendant
continued to deny any involvement.
After the interrogation, defendant was permitted to leave the detective
bureau and no charges were filed against him at that time. However, the officers
retained defendant's cell phone.
In the meantime, Leishman interrogated Williams. After that
interrogation, Leishman also reviewed surveillance videos that had been
obtained during the homicide investigation and identified defendant as "a person
of interest" from those videos. One surveillance video was from a Walgreens
near the crime scene. The police were interested in that Walgreens because a
witness found a receipt near the crime scene that showed lighter fluid had been
purchased from that store. The video depicted a very tall man who Leishman
believed was defendant based on his height. As Martinez explained, the
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detectives could not identify the faces of the individuals, but the difference in
their "physical stature" was significant.
Defendant returned to police headquarters later the same day to retrieve
his cell phone. When he did, the detectives detained him and Leishman and
Hamdeh conducted a second interview, which started at about 8:50 p.m. and
lasted about two hours. During the interview, defendant was again not
handcuffed and had not yet been charged with any offenses.
Defendant was read his Miranda rights a second time. He again signed
the Miranda waiver, but did not verbally respond to the detective's oral request
for confirmation that he knew his rights and wanted to speak without an attorney.
At the start of the second interrogation, the following exchange between
the detectives 3 and defendant occurred:
[SERGEANT HAMDEH]: My name is Sergeant
Hamdeh and this is Detective Leishman, I don't know
if you remember from earlier.
[DETECTIVE LEISHMAN]: So you were here
earlier and (unintelligible) went through this whole
formality we're just going to do it one more time alright,
so today is March 20th at 8:52 p.m. Before we ask you
any questions you must understand your rights. You
have the right to remain silent anything you say can be
3
The transcripts provided do not reflect which detective is speaking at which
time. The following is based on the transcripts provided, as supplemented by
our review of the taped interrogation.
A-5678-17
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used against you in a court of law. You have the right
to talk to a lawyer for advice before we ask you any
questions. Also you have the right to have a lawyer
with you during any questioning. If you cannot pay for
the services of a lawyer, a lawyer will be appointed to
represent you without cost before any interrogation. If
you decide to answer questions now without a lawyer
present you will still have the right to stop answering
questions at any time you also have the right to stop
answering at any time until you talk to a lawyer, you
understand that?
[DEFENDANT]: (Unintelligible) . . . all over
again.
[DETECTIVE LEISHMAN]: Listen we just
have to go through this before we talk to you.
[SERGEANT HAMDEH]: You're not in trouble.
You walked out earlier right?
[(Emphasis added).]
As Hamdeh was telling defendant that he was not in trouble, Leishman
slid the Miranda rights waiver form over to defendant. Defendant then signed
the waiver form. After defendant signed the form, Leishman asked him to
confirm that he knew what it meant:
[DETECTIVE LEISHMAN]: You know what
this says right? You signed it already, but the waiver
of rights. I have read or been read my rights and I
understand what my rights are. I am willing to make a
statement and answer questions. I do not want a lawyer
at this time. I understand and know what I'm doing. No
promises or threats have been made to me and nobody
A-5678-17
10
has used pressure or force of any kind against me.
Right, you agree you already signed it so you [sic]
gonna talk to us again?
Defendant did not respond, as he just sat with his chin resting on his hands
on the table. Hamdeh then immediately asked defendant, "What's your last name
brother," and defendant responded "Thomas."
During the ensuing interrogation, the detectives told defendant that they
had video of him entering a Walgreens at 1:30 a.m. wearing a black trench coat
similar to a coat they recovered from Williams' house where defendant had been
staying. Defendant acknowledged that he had always shopped at Walgreens and
had been there that week but initially denied being there at that time or owning
a trench coat.
They also told defendant that his height and "distinctive walk" made it
clear to them that it was defendant in the video, and that a video of the crime
scene showed him walking up to the car and lighting it on fire. In response to
defendant denying any involvement, the following exchange occurred, during
which Hamdeh raised his voice:
[SERGEANT HAMDEH]: I GOT VIDEO MAN,
I GOT VIDEO, you're not telling me the God's honest
truth.
[DEFENDANT]: Sir I wasn't . . .
A-5678-17
11
[SERGEANT HAMDEH]: You're not telling me
the God's honest truth, you're lying to me.
[DEFENDANT]: Sir I don't even own a black
trench coat sir.
[SERGEANT HAMDEH]: I got, I got video. I
got video.
....
[DETECTIVE LEISHMAN]: He doesn't
understand that I pretty much got that video. We
watched that video and if you were walking next to me
people are gonna go "goddam that guy is tall."
During the following later exchange, for the first time, the detectives
advised defendant that two people were killed during the incident:
[DETECTIVE LEISHMAN]: I got news for you,
you're caught up in a lot of nonsense because there's a
few of you. And you know what happen when a bunch
of guys do something together, somebody talks. And
they put it on another person. Listen, you can sit here
and lie. I'm not going through that. . . . I got videos
right here that says you're lying.
[DEFENDANT]: I'm not denying I was in
Walgreens but I didn't have nothing to do with
nothing. . . . I don't even know what happened.
[DETECTIVE LEISHMAN]: Two people got
killed. . . . Why did we have to tell you that? You really
think we don't know you were there?
[DEFENDANT]: I wasn't there sir.
A-5678-17
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[DETECTIVE LEISHMAN]: You're there on the
videos.
[DEFENDANT]: In Walgreens? Sir they got
killed in Walgreens?
[DETECTIVE LEISHMAN]: Let's not play
stupid here. We know they were in a car. It's been all
over the news for the last three days. You're on video
walking right up to that car. . . . The car where two
people got killed in.
[DEFENDANT]: Nah.
[DETECTIVE LEISHMAN]: And lit it on fire.
[DEFENDANT]: Impossible.
The detectives also advised defendant that Williams implicated him, and
told defendant he needed to "get out in front of this."
[DETECTIVE LEISHMAN]: I can honestly tell
you this you gotta get out in front of this because this is
big. [Williams] did a lot of talking today. We just left
here at 8 o'clock and now we're back again cause you
showed up. We were actually gonna come back and get
you tomorrow cause we needed to talk to you. But
since you showed up but . . .
[DEFENDANT]: Cause I know I didn't do
anything wrong sir.
[DETECTIVE LEISHMAN]: That's not what
[Williams] said.
[DEFENDANT]: Well he lying [sic] to ya. He
probably want [sic] sir come on sir. If [Williams] did
A-5678-17
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that, if he said I did something wrong, you guys
wouldn't even released me earlier.
[DETECTIVE LEISHMAN]: When [Williams]
told us all the stuff that happened we went and looked
at all the videos that we've been pulling from the past
three four days and sure enough we're able to
corroborate a lot of stuff he told us and then boom here's
a guy towering over everybody walking, wearing the
clothes that we recovered from your apartment.
During the interrogation, the detectives also made statements to defendant
about the possibility of him being charged with the murders and robberies, even
though they knew he played a "minimal role." While making these statements,
they again told defendant he had to "get ahead" of the situation. Those
statements included the following:
[DETECTIVE LEISHMAN]: You're gonna end
up wearing all these charges when you might of just had
a minimal role in this whole thing.
[DEFENDANT]: Minimal role in what though
sir? I don't even know what's going on. I wouldn't even
be here sir. I'm too smarter [sic] than that. I wouldn't
even be here sir.
[DETECTIVE LEISHMAN]: Why do you think
you're sitting here talking to us about this? Do you
think we just picked you out? All day we been [sic]
here watching video after you left and we said holy shit
he was just here.
[SERGEANT HAMDEH]: Yeah we were
kicking ourself [sic] in the ass because we let you go.
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A short time later, as defendant continued to deny any involvement, the
detectives warned defendant again:
[DETECTIVE LEISHMAN]: But this is your
opportunity to get in front of it because you may not
have pulled the trigger but you can go to jail just as long
as the guy who did.
[SERGEANT HAMDEH]: How about this, how
about this, I know you didn't pull the trigger. Listen,
listen to me, I know you didn't pull the trigger. . . .
Hear me out. . . . I know you didn't pull the trigger
because I got video. You understand that? I know that.
I know you didn't do that. But I know you were there.
[DEFENDANT]: Sir I wasn't there.
[SERGEANT HAMDEH]: Hear me out. I know
you were there. I know you were there.
[DEFENDANT]: I need to see those videos
cause I was never on no 14th Ave.
[SERGEANT HAMDEH]: When you put all the
pieces together . . . you're gonna be screwed if you
don't fucking get ahead of this.
[(Emphasis added).]
Later, the detectives again warned defendant about getting "in front" of
the charges:
[DETECTIVE LEISHMAN]: The story you're
gonna go with right now, how do you think that's gonna
appear in court with a jury?
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[DEFENDANT]: Let the jury decide.
[DETECTIVE LEISHMAN]: If you do that
buddy you're never gonna see the light of day, two
bodies.
[DEFENDANT]: I don't got nothing to do with
no two bodies sir.
[DETECTIVE LEISHMAN]: We're not saying
you're the one that did it, but we know you were there
with the people that did it [sic] we know you went there
with the people that did it. We know your phone is
calling the guy that did it.
[SERGEANT HAMDEH]: Unfortunately . . .
you might as well been the person that did it. Okay if
that's the case unless you get in front of this and help
yourself, you might as well been the person that shot
the bullet. No, no, hear me out. You might as well been
the person who did it unless you get in front of this.
Cause if you don't get in front of this you're just as
guilty. You understand?
[DEFENDANT]: Can I just see the videos?
[SERGEANT HAMDEH]: No, no listen you're
just as guilty and believe me believe me phone records
don't lie. No, no, hear me out phone records don't lie.
[(Emphasis added).]
Hamdeh also told him that he was implicated in the crimes because of his
presence on the videos, but that he could "minimize [his] damage." Leishman
also told defendant that "[t]he problem here is you're on video. You're with
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them . . . whether or not you pulled the trigger doesn't mean anything because
everybody is going to get charged with that. Whoever wants to cooperate?" and
"we're gonna walk outta this room and you're gonna get hit with both of them ."
(Emphasis added).
Although, as noted, defendant initially denied being with Williams that
night and said that he did not know what happened because he was not there ,
after the detectives reiterated they had video of him at the scene and that
Williams implicated him, he eventually stated that "I wasn't there when nobody
shot nobody, nobody, burned nobody. I wasn't present sir." When the detectives
responded by stating "You were present at the Walgreens when the igniter fluid
was bought to go back there and torch the car," defendant admitted that he had
been in a minivan driven by Williams and there were one or two other men in
the vehicle, but he was only there before and after the homicides took place.
Defendant ultimately admitted that he had been at the Walgreens but
denied that he purchased lighter fluid or had anything to do with setting a fire
or otherwise being involved with a crime. When the detectives asked him if he
knew the names of the people who were there, defendant said he only knew
Williams, and repeated that he did not know who pulled the trigger because he
was not there when anyone was shot.
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Significantly, the detectives again told defendant if he "wanted to help
[himself] out" he would need to "start from the beginning," and tell them the
names of people that were present in the van. They also told him that "[saying]
I don't know, I don’t know, that's not helping you." Defendant only reiterated
that when he got in the van there were three other people and that one was
Williams, but he did not know the others. However, he eventually told the
detectives that one of the other men in the van was someone known as
"Masterborn."
Defendant also told the detectives he kept calling Williams that night
because he wanted to buy marijuana from him. He claimed that Williams told
him where he was, and defendant realized he was nearby, which was when and
why defendant got into the van.
Defendant claimed he later asked Williams to let him out of the van
because defendant was concerned that Williams and the others were planning on
"bust[ing] a custy," 4 and he did not want to be involved in light of his own prior
criminal history. According to defendant, he was eventually dropped off and
then went to the Walgreens. He then explained that outside of Walgreens, he
4
At trial, Leishman explained that this term meant "they were going to rob a
customer."
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gave a dollar to a boy whom the detective stated bought the lighter fluid.
Defendant then again maintained he was not involved in the commission of any
crime. When defendant repeatedly stated that none of the vehicle's occupants
told him anything about a shooting, the detective responded by telling defendant
he was not "helping [him]self."
The detectives also told defendant that another video showed him wiping
prints off the white car, and defendant denied doing so.5 When the detectives
again asked for the identities of the other men with Williams that night,
defendant expressed that they were not known to him. The detective told
defendant that by not identifying the others, defendant was "not giving [them]
the information [they] need for [defendant] to help [him]self out ," and that
"[t]here's only one thing right now that's gonna help you with anything and that's
telling us who the other guys were."
Defendant responded that even if he knew their names, the detectives were
not letting him go because they suspected he wiped the prints from the car . In
response, Hamdeh told him to think about going to trial and how things would
5
This video did not clearly depict the faces of the individuals shown in the
footage so the detectives again relied on defendant's height.
A-5678-17
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"play out" if he cooperated, rather than what would happen if he continued
denying his involvement.
After stepping out of the room, the detectives returned and Hamdeh told
defendant that the interview was "about over, unless you want to give us
anything else that could help you." Defendant asked what he could do in order
to walk out of there and Hamdeh told him that was "not happening," but "if you
want to help yourself in the future you could tell us something." Defendant then
asked, "Can you please just give me a chance to talk, please sir," and whether
there was "nothing I could say, there's nothing I could do to get me outta here
right now?" The detective responded, "Nah, not gonna lie to you cause I haven't
lied to you these past two hours I haven't lied to you."
In the trial judge's ensuing written decision finding the statement
admissible, he found that defendant's "'freedom of action' was sufficiently
deprived to show that he was in custody," even though he was "not under formal
arrest or in physical restraints." He also found that although Hamdeh 6 "certainly
did not seek to highlight the significance of the second round of questioning,"
the detective's characterization of executing the Miranda rights as a "'formality'
6
Both defendant and the trial judge attributed the "formality" comment to
Hamdeh, although from the video it appears that Leishman said it. For reasons
explained below, it is of no moment who made the comment.
A-5678-17
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was not tantamount to a deprivation of a knowing conveyance of Miranda
warnings." Citing defendant's prior record of eight arrests, "one indictable
conviction, three disorderly persons and one municipal ordinance conviction,"
the judge concluded that defendant was "familiar with the justice system." The
judge acknowledged that, even though it is not known whether defendant was
advised of his rights during the prior arrests, "his rights were undoubtedly
discussed during prior court proceedings associated with those arrests."
The judge also found that the questioning of defendant in this matter was
"not prolonged in view of underlying events." Additionally, although the police
"raised their voices at times during the second interrogation," the judge "did not
observe anything approaching physical or mental exhaustion on [defendant's]
part or any other behavior to suggest that his will was overborne." He found
that the police "raised their voices out of frustration out of apparent
contradiction or omission by" defendant, and that "the heated discussion that
followed was of an emotionally charged nature indicative of the seriousness of
the matter under discussion." The judge did not find that defendant appeared
intimidated and he still "insisted on conveying his own version of events" while
"in the face of heightened emotions." Consequently, the judge found beyond a
reasonable doubt that defendant knowingly, intelligently, and voluntarily
A-5678-17
21
waived his Miranda rights prior to making the statement. The judge also found
that defendant's letter to the prosecutor was admissible.
II.
A.
Our review of a trial judge's findings at an evidentiary hearing or trial is
deferential. See State v. Tillery, 238 N.J. 293, 314 (2019); State v. Hubbard,
222 N.J. 249, 262-65 (2015). Nevertheless, "[w]hen faced with a [challenge to
a] trial [judge]'s admission of police-obtained statements, [we] engage in a
'searching and critical' review of the record to ensure protection of a defendant's
constitutional rights." State v. Hreha, 217 N.J. 368, 381-82 (2014) (quoting
State v. Pickles, 46 N.J. 542, 577 (1966)). "Subject to that caveat, [we] generally
will defer to a trial court's factual findings concerning the voluntariness of a
confession that are based on sufficient credible evidence in the record." State
v. L.H., 239 N.J. 22, 47 (2019). This deference extends to a judge's
determinations based not only on live testimony but also when based on the
review of video or documentary evidence because of the judge's "expertise in
fulfilling the role of factfinder." State v. S.S., 229 N.J. 360, 364-65, 379-80
(2017).
A-5678-17
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We will not reject the trial judge's factual findings merely because we
"disagree[] with the inferences drawn and the evidence accepted by the trial
[judge] or because [we] would have reached a different conclusion." Id. at 374.
Only if the judge's factual findings are "so clearly mistaken that the interests of
justice demand intervention and correction," will we discard those factual
findings. State v. Gamble, 218 N.J. 412, 425 (2014). When the judge's factual
findings are "not supported by sufficient credible evidence in the record," the
reviewing court's deference ends. S.S., 229 N.J. at 361. Then, the trial judge's
interpretation of the law and "the consequences that flow from established facts
are not entitled to any special deference." Gamble, 218 N.J. at 425.
B.
With these guiding principles in mind, we turn to defendant's contentions
on appeal that he did not knowingly and voluntarily waive his rights because the
detective "hastily recited the rights," presented them as a formality, and
minimized the importance of the warnings by telling him he was not in trouble
and pointing out that he had been able to leave the police station earlier that day.
He additionally contends that the detectives' conduct "induced" him into waiving
his rights and that they deprived him of important information "relating to the
nature of the allegations against him," since the detectives had watched the
A-5678-17
23
surveillance videos and believed defendant was involved in a crime but told him
he was not in trouble.
Defendant further argues that he did not voluntarily give his statement
because the police coerced him. He asserts that the detectives repeatedly yelled
at him that they had video proof he was involved in the murders, that they
misrepresented the videos because it was impossible to identify "anyone from
the surveillance videos," and that the detectives lied that Williams told the
detectives that defendant was involved in the murders. Based on those
representations, defendant claims that the detectives "contradicted the Miranda
warnings" by telling him that he had to confess "his full involvement in these
offenses" in order to avoid facing murder charges.
We conclude that although, as the trial judge found, the detectives
properly administered Miranda warnings, which defendant understood and
acknowledged,7 the combination of the detectives' repetitive misleading
7
While, as defendant argues, it is true officers "should scrupulously avoid
making comments that minimize the significance of the suspect's signature on
that card or form," Tillery, 238 N.J. at 319, the detective's first comment that the
Miranda warnings were just "a formality," can be overlooked as an offhand
remark that simply preceded the warnings defendant said he understood and
waived. It is the rest of the statements the officers made that we view as
impermissible. See State v. O.D.A.-C., No. A-2932-18, (App. Div. Feb. 8, 2021)
(slip op. at 13) (explaining that the detective's characterization of Miranda
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24
statements telling defendant that talking to them would, in contravention of the
Miranda warnings, help defendant, the detectives improperly induced defendant
to give incriminating information in contravention of his Fifth Amendment
rights. As such, we conclude that his statement should not have been admitted
as evidence.
"The right against self-incrimination . . . guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, [is]
now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
S.S., 229 N.J. at 381-82. The importance of that right cannot be overstated. As
Justice Albin stated in L.H., "[n]o piece of evidence may have greater sway over
a jury than a defendant's confession. For that reason, it is of critical importance
that law enforcement officers use interrogation techniques that will elicit
confessions by lawful means." 239 N.J. at 27.
A defendant may waive his Fifth Amendment rights so long as the waiver
is made knowingly, intelligently, and voluntarily. State v. Sims, 466 N.J. Super.
346, 363 (App. Div. 2021) (citing Miranda, 384 U.S. at 444), certif. granted, __
warnings as a formality was not by itself a problem but all of his statements had
to be viewed in context); State v. Cooper, 151 N.J. 326, 355 (1997)
("[M]isrepresentations alone are usually insufficient to justify a determination
of involuntariness or lack of knowledge.").
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25
N.J. __ (2021)(slip op. at 1). Before a defendant's custodial statement may be
admissible, the State must "'prove beyond a reasonable doubt that the suspect's
waiver [of rights] was knowing, intelligent, and voluntary.'" Ibid. (alteration in
original) (quoting State v. A.M., 237 N.J. 384, 397 (2019)).
When determining whether "the State has satisfied its burden," a court
must consider the "totality of the circumstances," which includes "factors such
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."
Ibid. (quoting A.M., 237 N.J. at 397). Additionally, a court may consider the
defendant's "previous encounters with law enforcement," State v. Knight, 183
N.J. 449, 463 (2005) (citing State v. Presha, 163 N.J. 304, 313 (2000)), and the
"period of time between 'administration of the [Miranda] warnings and the
volunteered statement.'" Ibid. (alteration in original) (quoting State v.
Timmendequas, 151 N.J. 515, 614 (1999)). The evidence must establish that the
statement was given voluntarily and "not . . . because the defendant's will was
overborne." L.H., 239 N.J.at 42 (quoting Knight, 183 N.J. at 462).
Our Court has explained that "[t]o eliminate questions about a suspect's
understanding, the entire Miranda form should be read aloud to a suspect being
A-5678-17
26
interrogated, or the suspect should be asked to read the entire form aloud," and
to the extent that is not done, "the suspect should be asked about his or her
literacy and educational background." A.M., 237 N.J. at 400. In determining
whether a waiver has occurred, "[t]he criterion is not solely the language
employed but a combination of that articulation and the surrounding facts and
circumstances." State v. Kremens, 52 N.J. 303, 311 (1968). The focus of a
Miranda analysis should be on whether the defendant had a clear understanding
and comprehension of his or her Miranda rights based on the totality of the
circumstances. State v. Puryear, 441 N.J. Super. 280, 297 (App. Div. 2015)
(citing State v. Nyhammer, 197 N.J. 383, 402 (2009)).
"Where the prosecution shows that a Miranda warning was given and that
it was understood by the accused, an accused's uncoerced statement establishes
an implied waiver of the right to remain silent." Tillery, 238 N.J. at 316 (quoting
Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)). However, a defendant
signing a waiver of his rights, which were read to him prior to being questioned,
cannot be accepted as evidence of a waiver where the interrogating officer
"minimize[s] the significance of the suspect's signature on that card or form."
Id. at 319 (concluding that a defendant's signature to a waiver form that only
A-5678-17
27
acknowledged his rights were read to him did not establish a waiver of his
rights).
For example,"[i]n [State ex rel. A.S.], the interrogating officer violated a
juvenile defendant's rights by telling her that answering questions 'would
actually benefit her'—an assertion at direct odds with the Miranda warning 'that
anything she said in the interview could be used against her in a court of law.'"
L.H., 239 N.J. at 44 (quoting State ex rel. A.S., 203 N.J. 131, 151 (2010)).
Similarly, in Puryear, the interrogating officer told defendant "[t]he only thing
you can possibly do here is help yourself out. You cannot get yourself in any
more trouble than you're already in. You can only help yourself out here." 441
N.J. Super. at 288. We found the defendant's ensuing statement inadmissible
because the detective's representation had neutralized the Miranda warning and
the defendant therefore did not knowingly, intelligently, and voluntarily waive
his Miranda rights. Id. at 298-99.
As we observed in that case, "[a] police officer cannot directly contradict,
out of one side of his mouth, the Miranda warnings just given out of the other."
Id. at 296-97 (first quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.
2003); then citing United States v. Ramirez, 991 F. Supp. 2d 1258, 1269-70
A-5678-17
28
(S.D. Fla. 2014) (telling a defendant if he or she did not answer questions "it
would be worse" contradicted the Miranda safeguards)).
The courts in A.S. and Puryear both held the defendants' statements
inadmissible because the interrogating officers had contradicted the Miranda
warnings by misleading the defendants into believing their statements would
help them and would not be used against them. Id. at 298-99; A.S., 203 N.J. at
151 (holding that the detective telling the defendant that answering his questions
would show that the defendant was a "good person" contradicted the Miranda
warnings). However, in Pillar, where a defendant admitted to a crime based on
the interrogating officer's assurance that their conversation was off the record,
we observed that "a misrepresentation by police does not render a confession or
waiver involuntary unless the misrepresentation actually induced the
confession." 359 N.J. Super. at 269 (quoting State v. Cooper, 151 N.J. 326, 355
(1997)).
"A court may conclude that a defendant's confession was involuntary if
interrogating officers extended a promise so enticing as to induce that
confession." L.H., 239 N.J. at 45 (quoting Hreha, 217 N.J. at 383). "[W]here a
promise is likely to 'strip[] defendant of his "capacity for self-determination"'
A-5678-17
29
and actually induce the incriminating statement, it is not voluntary." Ibid.
(quoting State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div. 2005)).
As Justice Albin also explained in L.H., while certain lies told by
interrogating officers are tolerated, inducements to speak to law enforcement
that include express or implied assurances of leniency cannot be tolerated.
Specifically, he stated the following:
Because a suspect will have a "natural reluctance" to
furnish details implicating himself in a crime, an
interrogating officer may attempt to dissipate this
reluctance and persuade the suspect to talk. . . . . One
permissible way is by appealing to the suspect's sense
of decency and urging him to tell the truth for his own
sake. . . . Our jurisprudence even gives officers leeway
to tell some lies during an interrogation. . . .
Certain lies, however, may have the capacity to
overbear a suspect's will and to render a confession
involuntary. Thus, a police officer cannot directly or
by implication tell a suspect that his statements will not
be used against him because to do so is in clear
contravention of the Miranda warnings. . . .
Other impermissible lies are false promises of leniency
that, under the totality of circumstances, have the
capacity to overbear a suspect's will. . . . A free and
voluntary confession is not one extracted by threats or
violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any
improper influence. . . .
....
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30
Under the totality-of-the-circumstances test, a promise
of leniency is one factor to be considered in
determining voluntariness. . . . Courts have
recognized that the danger posed by promises of
leniency is that such promises in some cases may have
the capacity to overbear a suspect's will and produce
unreliable— even false—confessions. . . . Some courts
also take into account an interrogator's "minimization"
of the offense when questioning the suspect as one
factor in determining the voluntariness of a confession.
[L.H., 239 N.J. at 43-46 (internal quotation marks,
alterations, and citations omitted).]
Applying these controlling principles to defendant's contentions on
appeal, we conclude that the trial judge erred by denying defendant's motion to
suppress his second statement to police. The statement was obtained after the
interrogating detectives repeatedly and persistently told defendant that the only
way he could help himself was by admitting his role in the subject robberies and
murders. These statements effectively "contradicted the Miranda warnings
provided to [defendant]: that anything [he] said in the interview could be used
against [him] in a court of law." A.S., 203 N.J. at 150.
Although defendant maintained that he had nothing to do with the crimes
despite the officers' representations, because of the officers' assurances that he
could help himself by talking to them, defendant placed himself with his
codefendant in the vehicle, neighborhood, and store the police had connected to
A-5678-17
31
the crimes. Under these circumstances, the statement should not have been
admitted.
While the trial judge engaged in a detailed analysis of the circumstances,
he overlooked the detectives' false promises to defendant. While on one hand,
they told defendant he was not in trouble, on the other they falsely told defendant
that he could help himself if he gave a statement, which directly negated the
Miranda warnings and induced defendant to supply incriminating information .
This information included verification that he was at Walgreens and in the van
with Williams and others on the night in question. As we have explained, a
detective cannot in one breath provide Miranda warnings to a suspect, including
the vitally significant fact that anything the suspect says can and will be used
against him in a court of law, and in the next, make repeated assurances that
speaking with the police will ultimately help that suspect in the same court of
law. Puryear, 441 N.J. Super. at 296-97.
The assurances from the detectives that defendant could help himself by
talking presented an overwhelming enticement to supply incriminating
information, with the hope, as defendant stated, he would be released. As such,
the detectives' assurances "clearly had the likelihood of stripping defendant of
his 'capacity for self-determination.'" Pillar, 359 N.J. Super. at 272-73 (quoting
A-5678-17
32
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)). These circumstances
thereby require the conclusion that the State failed to establish defendant's
statement was voluntary beyond a reasonable doubt. See id. at 273.
Because our determination that defendant's statement to police was
inadmissible requires us to vacate his convictions and remand for a new trial,
we need not address defendant's remaining contentions about the trial judge's
instructions to the jury, his denial of the motion to acquit, defendant's allegation
of ineffective assistance of counsel, or defendant's sentence.
The denial of defendant's suppression motion is reversed, his judgment of
conviction is vacated, and the matter is remanded for a new trial.
Reversed and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
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33