STATE OF NEW JERSEY VS. LAURIE WINT (12-09-2523, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2182-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAURIE WINT a/k/a LAURIE A.
WINT, JR., LAURIE
AINSWORTH WINT, LANCE,
Defendant-Appellant.
_________________________________
Argued May 30, 2017 – Decided June 20, 2017
Before Judges Sabatino, Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
12-09-2523.
Marcia Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Ms. Blum,
of counsel and on the brief).
Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Sara M.
Quigley, Deputy Attorney General, of counsel
and on the brief).
PER CURIAM
Following a 2014 jury trial, defendant Laurie Wint 1 was
convicted of second-degree passion/provocation manslaughter,
N.J.S.A. 2C:11-4(b)(2) as a lesser-included offense of murder
(count one); second-degree possession of a firearm for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count three);
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four);
and a second-degree "certain persons" weapons offense, N.J.S.A.
2C:39-7(b) (count five). After appropriate mergers, the trial
court sentenced defendant to a fourteen-year custodial term on
count one, subject to an eighty-five percent parole ineligibility
period pursuant to N.J.S.A. 2C:43-7.2, a four-year concurrent flat
sentence on count four, and an eight-year consecutive term on
count five, subject to a five-year parole disqualifier. These
sentences were all made consecutive to a sentence that defendant
was serving on a Pennsylvania conviction.
A key aspect of the State's proofs at trial was defendant's
admission, made during the course of a custodial interrogation by
detectives in Pennsylvania who were investigating a different
homicide in that state, that he had "murdered" a victim in New
1
In certain portions of the record, defendant is referred to as
"Lance."
2 A-2182-14T3
Jersey in June 2011. The interview in Pennsylvania took place
about six months after defendant had been met successively in New
Jersey by Camden and then by Pennsylvania detectives, and after
he had invoked each time his rights to counsel and to remain
silent. The trial court denied defendant's motion to suppress his
incriminating statement to the Pennsylvania investigators after
conducting a pretrial hearing on the issue.
Defendant's principal argument on appeal is that the trial
court erred in its suppression ruling by misapplying the principles
of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.
2d 378 (1981), and other case law that substantially restricts the
re-interrogation of suspects who have invoked their privilege
against self-incrimination and their rights to have counsel
present. Defendant further argues that the prosecutor made unduly
prejudicial comments during summation. Lastly, he contends that
the trial court should have granted his motion for a mistrial when
it excused two jurors and replaced them with alternates.
For the reasons that follow, we remand the suppression issue
for reconsideration and a taint/attenuation hearing. As we
explain, the remand proceeding shall focus upon what we have
determined to be the impropriety of the Pennsylvania detectives'
first attempted interview of defendant in New Jersey, and whether
that interview tainted their interview of defendant in
3 A-2182-14T3
Pennsylvania six months later. We reject defendant's remaining
arguments concerning the summation and the replacement of jurors.
I.
The trial arose out of the fatal shooting of the victim,
Kevin Miller, in a park in Camden on June 8, 2011. The State's
theory was that defendant, who had previously dated Miller's
girlfriend, had purposefully killed Miller after the two of them
had an argument. Conversely, defendant claimed that he had fired
the gun in self-defense after being accosted in the park by Miller
and several other individuals, at least two of whom had gang
affiliations.
The State presented no eyewitnesses at trial who actually
observed the shooting. However, it did present testimony from a
resident next to the park who heard the sound of a gunshot while
he was outside of his home watering plants. According to that
resident, when he heard the shot, he looked up and saw two men
running in the same direction. One man appeared to be chasing the
other man. The resident saw the man who was being chased collapse.
Other young men ran up to the collapsed man, who told them that
he had been shot. The injured man was then placed in a pickup
truck and driven away. The resident did not get a "clear view"
of the man who had been chasing the shooting victim.
4 A-2182-14T3
The State also presented testimony from defendant's former
girlfriend. She testified that on the day in question, which
happened to be her birthday, she had gone to Philadelphia with
defendant and two other friends to smoke marijuana. When she
returned to Camden later in the day, she learned that Miller, her
then-current boyfriend, had been angry with her. She tried to
call Miller, but he did not answer. According to testimony from
the girlfriend's mother, Miller had stopped by her house that
afternoon to show her a ring he bought her as a birthday gift.
When Miller learned she was not home, he immediately left.
A woman who was defendant's current girlfriend at the time
of the shooting testified that she had encountered Miller that
same day. He asked her, "Where's your boyfriend? I heard he was
with my girlfriend." When Miller left her, she sent a text message
to defendant that warned him he was "chillin' with the enemy."
The prosecution also called to the stand Clifton Bailey, a
friend of Miller who had been with him on the day of the shooting.
Bailey testified that Miller had picked him up at about 6:00 p.m.
that day. Miller drove them to his girlfriend's house. Upon
discovering she was not home, they drove around the neighborhood
for a while looking for her. At that point, Bailey received a
call from his girlfriend, who informed him that Miller's girlfriend
had been in Philadelphia that day with defendant and other people.
5 A-2182-14T3
According to Bailey, this revelation angered Miller. Bailey and
Miller went to the park to "talk to one of our boys." Bailey
denied that Miller was armed at the time.
As described by Bailey, he and Miller started going into the
park, with Miller walking ahead of him. He saw Miller "tussling
with somebody,"2 and then heard a gunshot. Bailey then saw Miller
running inside the park, with another unidentified person running
nearby. Bailey saw Miller fall. Recognizing Miller was wounded,
Bailey drove him to the hospital.
Miller died thereafter. The undisputed cause of death, as
confirmed by the medical examiner, was a gunshot wound to the left
side of his chest.
Another prosecution witness, a close friend of defendant,
testified that he saw defendant three or four days after the
shooting. According to that witness, defendant revealed that
Miller and Bailey, along with others, had tried to "jump" him in
the park, and that Miller had punched him in the face. Defendant
admitted to the friend that he became scared and thought "somebody
was reaching like they [were] going to pull out a gun or
2
Bailey had told police during an interview before trial that the
person who had been "tussling" with Miller was defendant. However,
after conducting a hearing pursuant to State v. Gross, 121 N.J.
1, 17 (1990), the trial court excluded that prior statement by
Bailey as being insufficiently reliable to present to the jury.
6 A-2182-14T3
something." Defendant told his friend he then pulled out his gun
and "just shot[.]"
Defendant was arrested by Camden County police officers over
a month later, on July 31, 2011. The police located defendant
after receiving a phone call reporting the whereabouts of a
fugitive who was wanted for homicide. Defendant tried to run out
of the house in which he was hiding once he saw that police
officers were coming for him.
Two days before defendant was arrested in New Jersey, he and
another person were charged in Pennsylvania with the unrelated
murder of a different victim occurring in that state. On the day
of defendant's arrest, two detectives from Pennsylvania were
waiting for him in the Camden County Prosecutor's Office to
question him about the Pennsylvania charges. The Pennsylvania
detectives monitored defendant from an adjacent room as he was
first questioned there by Camden police.
The Camden police issued Miranda3 warnings to defendant, but
he declined to waive his privilege against self-incrimination and
he also invoked his right to have counsel present. The Camden
police consequently suspended their questioning. They told
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7 A-2182-14T3
defendant that a "couple more people [would] just stop in for you.
Okay?" Defendant did not respond.
Immediately afterwards, the two Pennsylvania detectives came
into the interrogation room and attempted to interview defendant,
after giving him Miranda warnings. Defendant declined to speak
substantively with those detectives. However, he expressed at
that time a willingness to speak with them with counsel present
about the Pennsylvania homicide, but at a later time in
Pennsylvania.4 Shortly thereafter, the Pennsylvania detectives
encountered defendant in the hallway, and he reiterated his
willingness to speak with them on a future occasion in
Pennsylvania.
Several months later, Pennsylvania detectives met defendant
in the Camden County jail to obtain from him a DNA sample.
According to the detectives' testimony, they did not question him
at that meeting. However, they did advise him that they were
processing paperwork to bring him to Pennsylvania for questioning,
to which defendant responded, "Yeah, I'll talk to you when I get
back to Bucks [County]."
4
The details of this questioning, which were developed in a
pretrial suppression hearing, are discussed in more detail in Part
II(A), infra.
8 A-2182-14T3
Six months after his initial questioning in Camden, defendant
was brought from the Camden jail to a police station in Warminster,
Pennsylvania to speak with the Pennsylvania detectives. No counsel
for defendant was present. The Pennsylvania detectives re-
administered Miranda warnings to defendant. He then waived his
rights, and proceeded to speak with the detectives.
During the course of questioning defendant, Detective Martin
McDonough of the Bucks County District Attorney's Office asked him
why he had come to Warminster. Defendant responded, "[T]here were
warrants for us. In June 2011 I committed a murder in Camden.
About three weeks after the murder I saw my picture on TV."
At trial, the State called Detective McDonough to relate
defendant's incriminating statement admitting that he had
committed a murder in Camden. That critical evidence was presented
to the jury, in accordance with the trial court's denial of
defendant's pretrial suppression motion.
Defendant was the only witness to testify at trial on his
behalf. He asserted that Miller and Bailey were members of the
Bloods gang, but claimed that he himself was not a member of any
gang. He described both Miller and Bailey as "violent[,]"
asserting that they "always start[ed] trouble in the
neighborhood."
9 A-2182-14T3
Defendant told the jury that on June 8, 2011 he was walking
through the park on his way home, after returning from the trip
to Philadelphia. Defendant testified that, while walking, he saw
a white Crown Victoria containing Bailey, Miller, and two other
men. According to defendant, the car "stopped in the middle of
the street" and all four men got out. Miller then allegedly said,
"Yo, Lance, come here, come here," but defendant asserted that he
kept walking.
According to defendant, he then heard Miller "running across
the street[,]" and when defendant looked back, "all three of them
started punching" him. Defendant claimed that he then saw Bailey
"pull out the gun[,]" at which point the men "start[ed] backing
up and pulling out another gun[.]" In response, defendant "reached
for [his] gun and shot it[,]" because he was "scared that [he] was
going to die."
Defendant admitted that he did not have a permit for the .25
caliber gun he used. He insisted that he carried a gun, despite
the lack of a permit, because he lived "in a violent neighborhood"
and needed to "save" himself. Defendant testified that, when he
shot the gun, he "just pulled the trigger." According to
defendant, he did not know that the bullet had hit anyone.
Defendant asserted that, as he ran from the scene, he threw the
gun away.
10 A-2182-14T3
Defendant further testified that he left Camden about three
weeks later and went to Warminster, because "I saw myself on TV
and they said I was wanted for murder." He claimed that he did
not know that New Jersey had a self-defense law, so he "just took
off." Defendant also testified that the Bloods gang members were
"looking" for him and "were trying to shoot" him.
According to defendant, he told Detective McDonough during
the interview in Warminster that he "did a shooting in Camden."
McDonough allegedly then asked if someone had died, and when
defendant responded that they had, McDonough told him, "that's a
murder."
II.
In his brief on appeal, defendant presents the following
arguments:
POINT I
THE PURPORTED CONFESSION, ELICITED DURING AN
INTERROGATION CONDUCTED AFTER WINT HAD
ASSERTED HIS RIGHT TO COUNSEL AT TWO PREVIOUS
INTERROGATIONS, SHOULD HAVE BEEN SUPPRESSED
UNDER THE EDWARDS RULE BECAUSE: WINT DID NOT
INITIATE COMMUNICATION WITH THE POLICE AFTER
HE FIRST ASSERTED HIS RIGHT TO COUNSEL; THERE
WAS NO BREAK IN CUSTODY BETWEEN HIS TWO PRIOR
ASSERTIONS OF THE RIGHT TO COUNSEL AND THE
THIRD INTERROGATION; AND HE WAS NOT PROVIDED
WITH COUNSEL AT THE THIRD INTERROGATION.
A. The Edwards rule.
11 A-2182-14T3
B. The purported statement should have
been suppressed because Wint invoked his
right to counsel when he was questioned
by the Camden police, invoked it again a
few minutes later when he was questioned
by the Pennsylvania police, and the
statement was obtained during a third
interrogation in which he was not
provided with counsel.
C. The motion court made incorrect
factual and legal findings.
D. There was no break in Wint's custody.
E. Wint did not waive his request for
counsel with respect to the Camden
offense.
F. Conclusion.
POINT II
THE TRIAL COURT ERRED IN FAILING TO CORRECT
THE PROSECUTOR'S IMPROPER ARGUMENT THAT WINT'S
FAILURE TO REPORT HIS SELF-DEFENSE CLAIM TO
THE POLICE BEFORE HE WAS ARRESTED WAS PROOF
OF HIS GUILT. (Not Raised Below)
POINT III
THE TRIAL COURT ERRED IN REFUSING TO GRANT A
MISTRIAL AFTER A JUROR INFORMED THE PANEL THAT
SHE KNEW A MEMBER OF THE VICTIM'S FAMILY WHO
ATTENDED THE LAST DAY OF TRIAL AND THAT SHE
WAS AFRAID THAT HE WOULD RETALIATE IF WINT WAS
NOT CONVICTED.
A.
We first address defendant's main argument that the trial
court should have granted his motion to suppress the incriminating
statement he made to the Pennsylvania detectives when they
12 A-2182-14T3
questioned him in Warminster six months after his initial
respective interrogations by the New Jersey and Pennsylvania
officers in Camden. In considering defendant's contentions on
this issue, we apply well-established principles of appellate
review.
In general, appellate courts review a trial court's factual
findings from a suppression hearing under "a deferential
standard." State v. Stas, 212 N.J. 37, 48 (2012). Our role with
respect to the review of factual findings is to consider "whether
the findings made could reasonably have been reached on sufficient
credible evidence present in the record." State v. Johnson, 42
N.J. 146, 162 (1964); see also State v. Elders, 192 N.J. 224, 243-
44 (2007) (internal citations omitted). We must bear in mind the
trial court's "opportunity to hear and see the witnesses and to
have the 'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at
49.
By comparison, "with respect to legal determinations or
conclusions reached on the basis of the facts," our appellate
review is plenary. Ibid. For mixed questions of law and fact,
we give deference only to the "supported factual findings" of the
trial court, "but review de novo the lower court's application of
any legal rules to such factual findings." State v. Harris, 181
13 A-2182-14T3
N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185
(1997)).
1.
The key substantive principles of law that guide us on the
re-interrogation and suppression issues here were set forth by the
United States Supreme Court in Edwards v. Arizona, supra, 451 U.S.
at 477, 101 S. Ct. at 1880, 68 L. Ed. 2d at 378, and thereafter
clarified by the Court and our own state court in later decisions.
Most notably for our purposes here, those post-Edwards decisions
include Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L.
Ed. 2d 1045 (2010).
In Edwards, the defendant, who had been charged with robbery,
burglary, and murder, initially invoked his right to counsel,
asking for an attorney to counsel him prior to entering into any
negotiated plea. Id. at 479, 101 S. Ct. at 1882, 68 L. Ed. 2d at
382. The following morning, the detectives who had previously
questioned defendant visited the jail and asked to talk with him.
Ibid. The defendant was told by a guard at the jail that "he had
to talk" to the detectives. Id. at 479, 101 S. Ct. at 1882, 68
L. Ed. 2d at 383. After being read Miranda warnings, the defendant
waived his rights and provided statements implicating himself in
the crime. Ibid.14 A-2182-14T3
In reversing the Arizona Supreme Court's finding that the
statements were admissible, the United States Supreme Court held
in Edwards that
when an accused has invoked his right to have
counsel present during custodial
interrogation, a valid waiver of that right
cannot be established by showing only that he
responded to further police-initiated
custodial interrogation even if he has been
advised of his rights. . . . an accused, such
as Edwards, having expressed his desire to
deal with the police only through counsel, is
not subject to further interrogation by the
authorities until counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges,
or conversations with the police.
[Id. at 484-85, 101 S. Ct. at 1884-85, 68 L.
Ed. 2d at 386 (emphasis added).]
The Court further noted that, "[h]ad Edwards initiated the meeting
[at the jail at which he gave the statements], nothing in the
Fifth and Fourteenth Amendments would prohibit the police from
merely listening to his voluntary, volunteered statements and
using them against him at the trial." Id. at 485, 101 S. Ct. at
1885, 68 L. Ed. 2d at 387.
An important aspect of such an inquiry, therefore, is whether
the defendant re-initiated contact with the police. Id. at 487,
101 S. Ct. at 1886, 68 L. Ed. 2d at 388. To determine whether a
defendant re-initiated such a conversation with the police after
invoking his right to counsel, a court must look at whether the
15 A-2182-14T3
suspect "evince[d] a willingness and a desire for a generalized
discussion about the investigation[.]" State v. Fuller, 118 N.J.
75, 82 (1990) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-
46, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405, 412 (1983)).
The Edwards rule has since been applied "to any subsequent
interrogation, whether it pertained to the crime that prompted the
initial interrogation or to a different crime." State v. Wessells,
209 N.J. 395, 403 (2012) (emphasis added) (citing Arizona v.
Roberson, 486 U.S. 675, 683-84, 108 S. Ct. 2093, 2098-99, 100 L.
Ed. 2d 704, 714-15 (1988)). The Edwards restriction is "designed
to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights[.]" McNeil v. Wisconsin, 501
U.S. 171, 177, 111 S. Ct. 2204, 2208, 115 L. Ed. 2d 158, 168 (1991)
(quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176,
1180, 108 L. Ed. 2d 293, 302 (1990)).
Another key facet of the Edwards rule concerns the time
interval between when a suspect is initially questioned and later
interrogated, and, in particular, whether he or she has had what
the Court has regarded as a "break in custody." This concept was
illuminated by the United States Supreme Court in Shatzer, supra.In Shatzer, the defendant was incarcerated on an unrelated
crime prior to the interrogation concerning the crime at issue in
that case. Supra, 559 U.S. at 100-01, 130 S. Ct. at 1217, 175 L.
16 A-2182-14T3
Ed. 2d at 1050. The defendant was questioned in 2003 about the
crime at issue, and invoked his right to counsel. Id. at 101, 130
S. Ct. at 1217, 175 L. Ed. 2d at 1051. The defendant was then
returned to "the general prison population" without further
questioning. Ibid. The defendant was again interrogated about
that same crime three years later in 2006, after waiving his
Miranda rights. Id. at 101, 130 S. Ct. at 1218, 175 L. Ed. 2d at
1051.
In holding that the defendant's 2006 statement was
admissible, the Court explained in Shatzer that the rationale
underlying Edwards was that
subsequent requests for interrogation pose a
significantly greater risk of coercion. That
increased risk results not only from the
police's persistence in trying to get the
suspect to talk, but also from the continued
pressure that begins when the individual is
taken into custody as a suspect and sought to
be interrogated[.]
[Id. at 104-05, 130 S. Ct. at 1220, 175 L. Ed.
2d at 1053 (emphasis added).]
The Court further reasoned in Shatzer that, when a suspect is not
released from pretrial custody prior to a subsequent
interrogation, that suspect has not "regained a sense of control
or normalcy after they were initially taken into custody for the
crime under investigation." Id. at 107, 130 S. Ct. at 1221, 175
L. Ed. 2d at 1055.
17 A-2182-14T3
The Court thus announced in Shatzer a "break in custody"
exception to the Edwards rule. It instructed that when "a suspect
has been released from his pretrial custody and has returned to
his normal life for some time before the later attempted
interrogation, there is little reason to think that his change of
heart regarding interrogation without counsel has been coerced."
Ibid. Consequently, the Edwards prohibition on a re-interrogation
initiated by police rather than by a defendant did not extend to
circumstances in which there had been a sufficient "break in
custody[.]" Id. at 109-10, 130 S. Ct. at 1222, 175 L. Ed. 2d at
1056. As a bright-line rule, the Court stated that a fourteen-
day interval between the initial questioning of a defendant in
confinement and a resumed interrogation of such a person would
suffice to protect the defendant's constitutional rights. Id. at
110-12, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057.
Significantly, the Court in Shatzer emphasized the "vast
differences" between "Miranda custody" of a pretrial detainee and
the "incarceration [of a defendant] pursuant to conviction." Id.
at 114, 130 S. Ct. at 1225, 175 L. Ed. 2d at 1059. The Court
recognized that "lawful imprisonment imposed upon [a defendant's]
conviction of a crime does not create the coercive pressures
identified in Miranda." Id. at 113, 130 S. Ct. at 1224, 175 L.
Ed. 2d at 1058. That is because "[i]nterrogated suspects who have
18 A-2182-14T3
previously been convicted of crime live in prison." Ibid. When
released back to the general prison population, "they return to
their accustomed surroundings and daily routine" and "regain the
degree of control they had over their lives prior to the
interrogation." Ibid.Unlike pretrial detainees, sentenced prisoners are "not
isolated with their accusers." Ibid. Moreover, their continued
confinement is "relatively disconnected from their prior
unwillingness to cooperate in an investigation." Id. at 113, 130
S. Ct. at 1224-25, 175 L. Ed. 2d at 1058. Their former
interrogators have no power to increase or decrease the length of
their criminal sentences. Id. at 113, 130 S. Ct. at 1225, 175 L.
Ed. 2d at 1058-59. By contrast, a pretrial detainee who has yet
to be convicted and sentenced can be subject to significant
coercive pressure from a law enforcement investigator. Ibid.Our State Supreme Court in Wessells, supra, 209 N.J. at 413,
applied the fourteen-day bright-line rule adopted in Shatzer to a
situation in which the police had re-interviewed a suspect, who
had previously invoked his right to counsel, only nine days after
he had been released from custody. The Court ruled that because
the full fourteen-day break in custody prescribed by Shatzer had
not yet elapsed, "the coercive taint at the initial interrogation
had not dissipated and that [defendant's] statements . . . were
19 A-2182-14T3
therefore not voluntary." Ibid. The Justices also determined
that the principles of Shatzer were mandatory, and did not amount
to mere legal presumptions. Id. at 409-11.
2.
Defendant invokes the tenets of Edwards and Shatzer in
contending that the trial court here committed reversible error
in admitting into evidence his custodial statement he made to the
Pennsylvania investigators in Warminster. First, he argues that
the Pennsylvania detectives should not have been allowed to
interrogate him in Camden without counsel, immediately after he
had invoked his self-incrimination privilege and his right to an
attorney when speaking with the Camden officers. Second, he
maintains that he did not unilaterally "re-initiate" the lines of
communication with the Pennsylvania detectives and that the trial
court's contrary finding is not supported by a fair reading of the
record. Third, he contends that the court misapplied the law in
concluding that a sufficient "break in custody" occurred between
the two interrogations in New Jersey and the later interrogation
in Pennsylvania because he was continuously a pretrial detainee
during that entire time frame.
20 A-2182-14T3
Taking these sub-points in order, we first focus upon the
attempted interview by the Pennsylvania detectives that occurred
at the Camden City Police Station on July 31, 2011, immediately
after the Camden police had issued Miranda warnings to him and he
invoked, in response, his right to counsel. Because of the pivotal
importance of this first conversation defendant had with the
Pennsylvania detectives, we present the transcribed version5 in
its entirety here.
DETECTIVE MCDONOUGH ("MM"): How ya doin? Do,
do you go by Lance or Laurie or . . .
DEFENDANT ("D"): Yeah, Lance.
MM: Lance? I'm Marty McDonough. This is
John Bernardin.
DETECTIVE BERNARDIN ("JB"): John Bernardin.
D: How ya doin?
MM: We're, we're detectives form
Pennsylvania.
D: Okay.
MM: I work for the Prosecutor's Office in
Pennsylvania. John works for the police
department in Warminster. Um, I understand
that Camden asked you if you wanted to talk
about their case.
D: Mm, hmm.
5
We have also viewed the video recording of the interview, which
was played for the trial court during the suppression hearing.
21 A-2182-14T3
MM: Um, we're from Bucks County. There's
always two sides to a story. And what we'd
like to do is talk to you about our case.
D: Okay.
MM: Um, I'd like to know if you're willin to
do that. There's always, like I said, there's
always two sides to a story.
D: Mm, hmm. Um, you give, you give me a
cigarette, I'll tell you the whole thing about
yours because I didn't even know, I don't know
the guy.
MM: Okay.
D: I really don't know who hired. . .
MM: Okay. But let, I have to go through
this. The same thing that Camden did?
D: Yeah.
MM: I have to go through it [i.e., the
issuance of Miranda warnings] again with you
because it's two separate cases.
D: (inaudible)
MM: I mean you said you don't wanna talk to
them. . .
D: Because. . .
MM: And I just have to make sure. . .
D: They're harassin me.
MM: What's that?
D: Harassin me. Like cops are like tellin
the stuff here, like threatening me and stuff.
MM: Okay.
22 A-2182-14T3
D: So I don't really wanna talk to. . .
MM: Okay.
D: Anybody (inaudible)
MM: But you're willing to talk to us though?
D: Yeah. Cause you guys not from. . .
MM: No. We're from Pennsylvania. Obviously,
you know you're under arrest. Right?
D: Yeah I am.
MM: We have the duty to explain to you and
warn you of the following legal rights. What
I'd like to do is I'm gonna read you each of
these and there's a letter next to them. . .
D: Uh, huh.
MM: As long as you understand what I explain
to you just put your initials next to each
letter.
D: Mm, hmm.
MM: Okay? You have the right to [re]main,
remain silent and you do not have to say
anything at all. You understand that?
D: Mm, hmm.
MM: Put your initials next to A. Anything
you say can and will be used against you in a
court of law. Understand that? You have the
right to talk to a lawyer of your own choice
before we ask any questions and also to have
a lawyer with you while we ask the questions
if you, if you so desire. Do you understand
that?
23 A-2182-14T3
If you cannot afford to hire a lawyer and
you want one, we will see that a lawyer's
provided to you free of charge before we ask
you any questions. You understand that?
If you're willin to answer our questions,
you have the right to stop answering such
questions at any time you wish. You
understand that?
D: Mm. hmm.
MM: Do you understand all the things that
have been explained to you?
D: Mm, hmm.
MM: And what I asked you that question, your
answer was. . .
D: What question? Do I understand?
MM: Do you understand all the things that
have been explained to you?
D: Yes.
MM: Okay. Do me a favor? Write the word yes
there, then put your initials here? Okay, the
last question do you wish to speak to us
without a lawyer being present.
D: I want him to sit here while we talk.
[Brief interruption when a Camden detective
temporarily enters to drop off or retrieve a
briefcase.]
MM: I didn't hear. Do you wish to speak to
us without a lawyer being present?
D: I want him to sit here while we ta[lk].
MM: You want a lawyer here with us?
24 A-2182-14T3
D: Yeah.
MM: Okay. So, that, that won't happen today
because we don't have a lawyer here with you.
But if you want one, that, that, that's fine.
D: Yeah.
MM: You're welcome to do that but, um, if you
wanted to talk to us today then, then your
answer here would be no?
D: No. I would. . .
MM: Or do you want to talk to us today?
D: I wanna talk to y'all but I want a lawyer
here present cause I don't, don't. . .
MM: I got ya. I got ya. That, that, that's,
if that's your answer, that's you[r] answer.
D: Yeah. So. . .
MM: So, you do not want to talk to us right
now.
D: Without a lawyer?
MM: Correct. So you write no there [on the
form]. And put your initials there. And do
me a favor, sign the, sign this across here?
D: Across that way?
MM: Yep. And just down here put the date and
the time. The time is, uh. . .
D: 7[:]30
MM: Yeah.
JB: 9:30.
D: 9:30?
25 A-2182-14T3
MM: Mm, hmm. Okay, So I guess we're done
for today then.
D: Sorry.
MM: You have any question. . . You don't
have to apologize. You, you can do what you
want. You have any questions for us? Okay.
[(Emphasis added).]
The trial court6 made no specific findings as to whether this
first session the Pennsylvania detectives had with defendant in
New Jersey was permissible under Edwards and the controlling case
law. Of course, we give due deference to the trial court,
including its determination that the detectives who testified at
the suppression hearing were credible. Nonetheless, we conclude
as a matter of law that the Pennsylvania detectives' first attempt
to question defendant, only a few minutes after they witnessed him
invoking his right to counsel to the Camden detectives, violated
his constitutional rights.
As the United States Supreme Court made very clear in Edwards,
"an accused . . . , having expressed his desire to deal with the
police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
6
The pretrial suppression ruling was made by a different judge
than the one who eventually tried the case.
26 A-2182-14T3
communication, exchanges, or conversations with the police."
Edwards, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed.
2d at 386.
Here, defendant indisputably and unambiguously expressed to
the Camden detectives during their attempted interview with him
that he did not want to answer questions without having counsel
present. Despite that clear invocation of his rights, the Camden
authorities allowed the Pennsylvania detectives into the interview
room moments later, without telling defendant that he was not
obligated to speak with them. Clearly, defendant himself did not
"initiate" the back-to-back interview, and the trial court made
no such finding. Further, it is undisputed that no attorney was
summoned to be present with defendant when the Pennsylvania
detectives attempted to question him.
For purposes of this first phase of our constitutional
analysis, it is irrelevant that the Pennsylvania detectives had
come to New Jersey from a different jurisdiction and wanted to
speak with him about a different homicide committed in that state.
See, e.g., Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486,
112 L. Ed. 2d 489 (1990) (holding it unconstitutional for a county
deputy sheriff to interrogate a suspect about a homicide only two
days after he had been interviewed at the local jail by FBI agents
about other matters and had then invoked his right to have counsel
27 A-2182-14T3
present, where the suspect had consulted with an attorney but had
not initiated the subsequent conversation with the deputy
sheriff). See also State v. Hartley, 103 N.J. 252 (1986) (likewise
holding that the court must exclude incriminating statements a
suspect made to State law enforcement officials after he had been
improperly questioned by federal agents who had not administered
Miranda warnings to him). As the Court noted in Hartley, despite
the fact that the New Jersey officials themselves had issued
Miranda warnings to defendant during the second interview, their
questioning "on the heels of" the improper earlier interview by
the federal agents was "unavoidably tainted." Id. at 284.
We recognize that the video and transcript show that the
Pennsylvania detectives approached defendant in a polite and non-
threatening manner, and that they did not try to coerce him
unfairly into making any incriminating statements. We further
recognize that the Pennsylvania detectives confined their
discussion to the crime in Pennsylvania, and that they immediately
respected defendant's wishes once he made it clear that, although
he was willing to talk with them about the Pennsylvania matter,
he did not want to speak to them about it at that time without a
lawyer present. Even so, the Pennsylvania detectives had no right
to initiate any interrogation of defendant, only minutes after he
28 A-2182-14T3
had invoked his right to counsel in the same interrogation room
to the Camden detectives.
For these compelling reasons, we hold, as a matter of law,
that it was improper for the Pennsylvania detectives to attempt
to interrogate defendant in Camden "on the heels" of his invocation
of his rights to the Camden investigators, just as a similar
sequence of questioning was invalidated in Hartley. Ibid.With this key legal infirmity in mind, we turn to consider
whether later events nonetheless render the statements that
defendant made to the Pennsylvania detectives six months
afterwards admissible. In ruling those later statements were
admissible, the trial judge largely focused upon two factors: (1)
a finding that defendant, rather than the Pennsylvania detectives,
initiated the arrangements to interview him in Pennsylvania, and
(2) a finding that there was a sufficient "break in custody"
between the two consecutive interviews in Camden and the later
interview in Warminster.
With all due respect to the trial court's fact-finding role,
it is apparent that the record nonetheless reflects that the
Pennsylvania detectives, rather than defendant, were the primary,
if not sole, initiators of the Warminster interrogation. As
recounted by Detective McDonough at the suppression hearing, "as
we were leaving [Camden] we explained to [defendant] that we were
29 A-2182-14T3
trying to file paperwork to bring him back to Bucks and that we
would talk to him when he got back to Bucks. And he acknowledged,
yeah, I'll talk to you when I get back to Bucks." This description
by the detective supports defendant's contention that his
expressed willingness to resume talking with the Pennsylvania
detectives – after invoking to them his right to counsel – was
not, as the trial court found, "unsolicited." Instead, defendant's
response in the hallway at the Camden police station mimicked the
language contained in the remark the detectives first made to him.
Although defendant had expressed earlier in the interrogation
room a desire to speak in Pennsylvania with the Pennsylvania
detectives about the homicide case pending in that state, there
is no proof that he re-initiated a discussion with the Pennsylvania
detectives after telling them he wanted a lawyer. Instead, the
impetus to initiate a discussion after defendant invoked his
constitutional rights came from the Pennsylvania detectives.
Given the chronology shown by the record, the trial court's
mistaken finding on this discrete point must be set aside. 7 See,
e.g., State v. Hreha, 217 N.J. 368, 385 (2014) (reversing trial
7
To be fair to the trial court, the hallway conversation in Camden
was not recorded or transcribed. Nonetheless, there is no proof
that defendant spoke first to the officers, or that he raised the
topic of a subsequent interview without police prompting.
30 A-2182-14T3
court findings from a suppression hearing where the record lacked
sufficient credible evidence to support them).
Viewing, as we must, the record as a whole, we conclude that
defendant did not "initiate" his second interrogation by the
Pennsylvania detectives. Accord Edwards, supra, 451 U.S. at 484-
85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386. At the very least,
there is no evidence in this record that defendant ever told the
Pennsylvania detectives before he was taken by them to Warminster
that he was willing to answer their queries without having a lawyer
at his side.
Moving on to defendant's final sub-point regarding the "break
in custody" factor set forth in Shatzer, we encounter additional
difficulties. Apparently, neither of the trial attorneys
expressly argued to the pretrial judge that, as we noted in Part
II(A)(1), supra, the Supreme Court in Shatzer recognized an
important doctrinal distinction between the interrogation of
persons who are confined due to past convictions, as opposed to
persons who are pretrial detainees. See Shatzer, supra, 559 U.S.
at 104-05, 130 S. Ct. at 122-210, 175 L. Ed. 2d at 1053.
It is undisputed that defendant was still a pretrial detainee
being held in New Jersey at the time he was extradited and brought
over to Pennsylvania for questioning on January 18, 2012. The
record does not divulge whether he had been assigned an attorney
31 A-2182-14T3
by that point in New Jersey to represent him. He had not yet been
indicted in New Jersey. The terms of his detention and whether
he had been unable to post bail are not clear. Nor does the
present record divulge what defendant's "normal" routine was in
New Jersey during that period of his pre-trial confinement. Such
details were important to the Supreme Court in its "break in
custody" analysis in Shatzer. See id. at 114, 130 S. Ct. at 1225,
175 L. Ed. 2d at 1059 (underscoring the defendant's ability as a
prisoner to have regular exercise and recreation, visit the
library, receive training and education, send and receive mail,
and receive visits twice weekly). None of that information
unfortunately is contained in the present record.
Moreover, it is not entirely clear if the Pennsylvania
authorities' ability to place coercive pressures on defendant was
sufficient here to negate a "break in custody." Id. at 113, 130
S. Ct. at 1225, 175 L. Ed. 2d at 1059. To be sure, the pending
homicide charges in Pennsylvania against defendant and another co-
defendant likely added to the degree of leverage over defendant
while he was confined in the Camden County jail. On the other
hand, his principal captors at that time were New Jersey officials,
upon whom defendant was presumably dependent with respect to the
day-to-day conditions of his confinement.
32 A-2182-14T3
In sum, the present record is incomplete and inconclusive to
enable the Shatzer "break-in-custody" analysis to be resolved
definitively. Consequently, we are not in an optimal position to
either affirm or reverse the trial court's finding on that
important sub-point. For the reasons noted, infra, an amplified
break-in-custody analysis is best conducted by the trial court on
remand, along with the taint/attenuation issue that we shall now
discuss.
3.
The gap in time between defendant's first and second interview
by the Pennsylvania detectives bears not only on the aforesaid
break-in-custody question, but also implicates issues of taint and
attenuation. More specifically, given our conclusions that (1)
the Pennsylvania detectives' session with defendant in Camden was
improper and (2) defendant did not re-initiate a conversation with
them, does the impropriety of that session necessarily taint the
detectives' interview in Warminster that followed six months
later?
The United States Supreme Court has identified several
factors for evaluating whether improper police questioning at an
initial session will taint an interrogation conducted at a later
time. These factors include the time between the interviews,
whether the interview location changed, whether the defendant
33 A-2182-14T3
received adequate Miranda warnings, whether he initiated the
second interrogation, the effect on the second session of any
admissions made at the first session, and the "purpose and
flagrancy of [the] police misconduct." Brown v. Illinois, 422
U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427
(1975); see also State v. Maltese, 222 N.J. 525, 548 (2015)
(applying these factors); State v. Hartley, supra, 103 N.J. at 283(same). Depending upon how these factors align, a court determines
whether a defendant's incriminating statement to police officials
comprises the "fruit" of an illegal previous interrogation. See
Maltese, supra, 222 N.J. at 549 (concluding that a defendant's
incriminating statement to police was the fruit of an earlier
unconstitutionally-obtained statement that he made to his uncle,
which police had surreptitiously and illegally recorded).
The record on appeal in this case is inadequate to weigh and
assess these taint factors. One might infer that the Pennsylvania
detectives established a rapport with him during their illegal
first session with him in Camden, and that the rapport facilitated
their success in inducing him six months later in Warminster to
waive his rights and speak to them there without the protection
of counsel. On the other hand, even assuming the Pennsylvania
detectives should not have met with defendant in Camden after he
had invoked his rights, their session with him in Camden in which
34 A-2182-14T3
he made no inculpatory admissions arguably could be viewed as
innocuous and not reasonably something that tainted their future
interactions with him. The trial court made no express rulings
on these important questions of taint – understandably because it
had not determined, as we do here, that the Pennsylvania
detectives' attempted interview of defendant in Camden was
improper.
The causal relationship between the series of events, or the
lack thereof, is not obvious from the record. We cannot tell if,
hypothetically, the Pennsylvania detectives had never met with
defendant several times in Camden (first in the interrogation room
in July 2011, thereafter in the hallway that day, and months later
when they came to collect his DNA sample), whether he would have
been amenable to waiving his rights and speaking with them in
Warminster.
To be sure, as the pretrial judge aptly recognized, defendant
appeared quite eager to discuss the Pennsylvania homicide with the
Pennsylvania detectives in Camden, but not at that particular time
and place. But we cannot readily determine from this record
whether that seemingly eager attitude was affected by defendant's
perception that he had been mistreated by the New Jersey
authorities. Nor can we discern conclusively whether the
Pennsylvania detectives, who stressed to defendant that they came
35 A-2182-14T3
from a different state, unfairly capitalized on the improper
opportunity to speak with him immediately after he had aborted his
interview with the New Jersey detectives.
Defendant did not testify at the suppression hearing. The
questions posed to the testifying officers at the hearing did not
delve thoroughly into these critical subjects of cause, effect,
and possible taint.
In making these observations, we do not subscribe to the
extreme view that defendant's invocation of his Fifth Amendment
rights in July 2011 during the interviews in Camden indefinitely
and inexorably barred all law enforcement agents from any
jurisdiction from attempting to interview him about the crimes
during his lengthy period of pretrial detention. Long ago in
Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321, 326, 46 L.
Ed. 2d 313, 321 (1975), the United States Supreme Court cautioned
that "a blanket prohibition against the taking of voluntary
statements or a permanent immunity from further interrogation,
regardless of the circumstances, would transform the Miranda
safeguards into wholly irrational obstacles to legitimate police
investigative activity, and deprive suspects of any opportunity
to make informed and intelligent assessments of their interests." 8
8
We are mindful that the Court's subsequent decisions after Mosley
refined these concepts, resulting, for example, in the "fourteen-
36 A-2182-14T3
Hence, a careful, case-specific analysis is necessary to determine
if the interviews in Camden nullified the interview conducted six
months later in Warminster, at which time defendant was duly re-
issued Miranda warnings and at which time he agreed to talk to the
Pennsylvania detectives without counsel present.
As the New Jersey Supreme Court noted in Hartley, supra, 103
N.J. at 283, issues of taint stemming from an initial improper
interrogation "are ordinarily viewed as questions of fact to be
determined by a trial court after a hearing." Furthermore,
"ordinarily a remand for the purpose of conducting such a hearing
and making findings of fact and conclusions of law would be in
order." Id. at 283-84. On the facts in Hartley, the Court
concluded that a remand was not needed, because the circumstances
of the back-to-back interviews at issue there could not "generate
a conclusion of sufficient attenuation between the first and second
interviews to dissipate the taint." Id. at 284.
In the present case, we find that the remand "ordinarily"
prescribed by Hartley would be beneficial. As we have already
noted, the trial court did not address questions of taint and
attenuation that have now emerged on appeal as pivotal issues. We
day rule" for break-in-custody analysis set forth in Shatzer.
Nevertheless, the Court's general observation that we have quoted
from Mosley remains instructive.
37 A-2182-14T3
will not presume that what occurred six months earlier in Camden
necessarily invalidated the Pennsylvania detectives' interview in
Warminster six months later. Instead, the questions of taint and
attenuation must be explored in depth on remand at a supplemental
hearing, at which both the State and defendant may present
additional testimony germane to those matters. In a related vein,
for the reasons we have already noted, the trial court must also
address on remand the factual information bearing upon the "break
in custody" analysis set forth in Shatzer.
At the conclusion of the remand proceeding, the trial court9
shall issue detailed findings of fact and conclusions of law as
to these matters. The court shall specifically reconsider, in
light of that analysis and the guidance of this opinion, whether
defendant's incriminating statement he made in the Warminster
interview should be admitted or suppressed. If the court finds
the former, then his conviction shall remain in place. If the
court finds the latter, defendant's conviction must be vacated and
a new trial shall proceed, at which the statement will be excluded.
Either party may pursue appellate review of the remand
9
We recognize that the pretrial judge who presided over the 2013
suppression hearing is no longer serving in the trial court, so a
different judge will need to discharge this responsibility,
perhaps the judge who presided over the 2014 trial.
38 A-2182-14T3
determination in a timely fashion, in accordance with the Rules
of Court.
In sum, this matter is remanded for reconsideration of the
suppression issues and for a hearing on taint/attenuation. Pending
the completion of the remand process, the judgment of conviction
shall remain in force.
B.
Although we need not reach the two remaining points raised
on appeal by defendant, we address them very briefly for sake of
completeness. Neither of them have any merit.
First, we find no basis to set aside defendant's conviction
because of his claim that the prosecutor made unduly prejudicial
remarks during summation. In particular, defendant complains, for
the first time on appeal, that the prosecutor unfairly argued to
the jury that he should have waited for the police at the scene
of the shooting if indeed his conduct was innocuous. We discern
no impropriety in this line of argument, which was a fair attempt
to impeach and negate defendant's trial testimony asserting self-
defense. See State v. Brown, 190 N.J. 144, 159 (2007) (noting
that a defendant's pre-arrest silence or conduct is admissible
"for the limited purpose of impeaching [that] defendant's
credibility"); State v. Brown, 118 N.J. 595, 613 (1990) (further
noting that "evidence of pre-arrest silence, particularly in the
39 A-2182-14T3
absence of official interrogation, does not violate any right of
the defendant involving self-incrimination"). Moreover, the trial
court in this case issued an appropriate limiting instruction on
the point after the State cross-examined defendant about his pre-
arrest conduct. Defendant identifies no deficiency in that
instruction, and nor did his trial attorney.
Second, we are unpersuaded by defendant's claim that the
trial court should have granted his counsel's motion for a mistrial
after two jurors were dismissed and replaced by alternates during
the deliberations. One of the two jurors had recognized a member
of the victim's family in the audience, and she thereafter
mentioned that observation to the other jurors. One of those
other jurors expressed misgivings to the court about continuing
to serve.
We are satisfied from the circumstances presented that the
trial court acted appropriately to ameliorate any potential
prejudice arising from these events and that it safeguarded
defendant's right to a fair trial and a fair jury. The court
performed a voir dire of all of the remaining jurors individually.
Other than the two jurors who were excused, none of them expressed
qualms about continuing with the deliberations. Nor is there any
evidence that the jurors were exposed to extraneous evidence. The
court's inquiries sufficed to assure that the deliberating jurors
40 A-2182-14T3
would be unaffected by the events that led to the removal of their
two colleagues. See State v. Jenkins, 182 N.J. 112, 124 (2004)
(discussing the applicable standards for juror substitution).
Defendant has not demonstrated that the trial court abused its
discretion in its handling of these juror issues; State v. Musa,
222 N.J. 554, 565 (2015) (requiring such a demonstration).
All other arguments presented by defendant lack sufficient
merit to warrant discussion. R. 2:11-3(e)(2).
III.
Affirmed in part, and remanded in part for reconsideration
and further hearing on the suppression issues. We do not retain
jurisdiction.
41 A-2182-14T3