STATE OF NEW JERSEY VS. JOHN G. HAGER (14-07-0678, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2568-17T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 19, 2020
v. APPELLATE DIVISION
JOHN G. HAGER, a/k/a
JOHN G. HAGER, JR.,
and JACK,
Defendant-Appellant.
_________________________
Submitted December 11, 2019 – Decided February 19, 2020
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Indictment No. 14-
07-0678.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Timothy Denny, Assistant Deputy
Public Defender, of counsel and on the briefs).
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Staci L. Scheetz, Senior
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
In this case, we consider whether the omission of one of the Miranda1
warnings during custodial interrogation adequately conveys the substance of
the warnings. Defendant was charged in a three-count indictment with third-
degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(2); and second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b). The charges stemmed from an altercation at
defendant's home, as a result of which responding officers placed defendant
under arrest. During the ensuing custodial interrogation, in which it is
undisputed defendant was administered incomplete Miranda warnings,
defendant disclosed the location of a BB gun in his home, leading to the
issuance of a search warrant and the seizure of the gun.
Following a bifurcated jury trial in which defendant's statement was
admitted, defendant was convicted of a lesser-included disorderly persons
offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and acquitted of terroristic
threats. Prior to the second trial on the certain persons charge, defendant
entered a negotiated guilty plea to an amended charge of third-degree unlawful
possession of a BB gun, N.J.S.A. 2C:39-5(b)(2). He was sentenced to an
aggregate five-year probationary term, conditioned upon serving 100 days in
the county jail.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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On appeal, defendant raises the following single point for our
consideration:
POINT I
THE [MIRANDA] WARNING WAS
FUNDAMENTALLY FLAWED BECAUSE IT DID
NOT INFORM THE DEFENDANT THAT HE HAD
A RIGHT TO HAVE COUNSEL PROVIDED FOR
HIM IF HE COULD NOT AFFORD IT, VIOLATING
HIS RIGHTS TO DUE PROCESS AND A FAIR
TRIAL, AND REQUIRING SUPPRESSION OF HIS
STATEMENT AND THE PHYSICAL EVIDENCE
FOUND AS A RESULT.
We accept the trial judge's factual findings following the Miranda
hearing, as they are supported by sufficient, credible evidence in the record.
See State v. Gandhi, 201 N.J. 161, 200 (2010) (quoting State v. Elders, 192
N.J. 224, 243 (2007)). However, reviewing de novo the judge's legal
conclusions that flow from those facts, see State v. Mann, 203 N.J. 328, 337
(2010), we conclude the statements defendant made during custodial
interrogation should have been excluded at trial. Thus, we reverse defendant's
convictions and remand for a new trial. Nevertheless, we are satisfied
suppression of the physical evidence seized as a result of defendant's
statements is not required.
Following the Miranda hearing, the judge issued a May 17, 2017 written
decision denying defendant's motion to suppress his statements and the
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evidence seized as a result. The judge summarized his factual findings as
follows:
On February 23, 2014, patrols from the Logan
Township Police Department were dispatched to . . .
Main Street in Bridgeport . . . regarding an altercation
involving [an] alleged terroristic threat. Upon arrival,
the patrol officers spoke with the caller, [D.W.]
[D.W.] was [d]efendant's tenant and [d]efendant's
apartment was located above [D.W.'s] residence.
[D.W.] informed the officer that while she was out,
[d]efendant threatened to shoot her son, [Z.W.], if the
trashcans were moved again. [Z.W.] informed the
officers that [d]efendant knocked on his bedroom
window and said, "move them again and I'll shoot you
mother fucker." [Z.W.] claimed that he moved the
trashcans in order for his mother to be able to park her
vehicle.
Based on previous reports, the patrol officers
were aware that [d]efendant had a BB gun. Speaking
through a window, the officers told [d]efendant that he
needed to come to the door and talk with them because
he was being charged with terroristic threats.
Defendant refused to come to the door and informed
patrols he was threatening his brother, not [Z.W.]
Defendant was then advised that he was under arrest
several times and instructed to open up or the officers
would have to kick down the front door. [Sgt.] Flatley
kicked in the first level door, and gave more warnings
at the top of the stairs. Defendant still refused to open
the door, so the officers then kicked in the door to the
second floor apartment. Defendant ran into the
bedroom, but came out after a few verbal commands.
Defendant was placed under arrest following a short
struggle, removed from the residence, and brought
down to the police vehicle.
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Based on his review of the arrest recorded on Flatley's police vehicle
mobile video recorder (MVR), the judge found:
Sgt. Flatley then began to read [d]efendant his
rights pursuant to Miranda; however, [d]efendant
continuously interrupted the officer. Following the
Miranda warnings, [d]efendant voluntarily answered
questions relating to various items that were located in
his apartment, particularly the location of the BB gun.
Defendant told the officers that he had a BB gun and a
flare gun in a box located in the bedroom next to the
kitchen. Additionally, [d]efendant acknowledged that
although he possessed these items, he believed he was
allowed to, despite being a convicted felon.
Defendant was then transported to police
headquarters.
Once at headquarters, unbeknownst to
[d]efendant, an officer immediately turned on the
recording device, where [d]efendant was handcuffed
in his seat. Sgt. Flatley advised [Ofc.] Hopkins that
[d]efendant had been previously advised of his
Miranda rights, and that he acknowledged and waived
his right to remain silent and to have counsel present
during questioning. The State has confirmed that no
Miranda card exists. Ofc. Hopkins spoke with
[d]efendant in the booking area to gain information for
the generation of a search warrant. Ofc. Hopkins
asked [d]efendant for a specific location of the
firearms in the residence and [d]efendant again stated
that the firearms were located in a brown box in the
bedroom next to the kitchen. Defendant further stated
that the key to the box was located on top of the
refrigerator in the kitchen.
The police subsequently sought a warrant to
search [d]efendant's house. . . . [A] search warrant
was issued, and . . . several items, including the BB
gun and flare gun were found in the brown box.
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Preliminarily, the judge determined that the statements made after
defendant was arrested, removed from his apartment, and brought to the police
vehicle, were the product of a custodial interrogation for which Miranda
warnings were required as a precondition to admissibility. Thus, the judge
correctly posited that "the issue [was] whether the substance of the Miranda
rights" conveyed to defendant "adequately informed [him] of his constitutional
rights."
Relevant to that inquiry, the judge acknowledged that
when the officer was trying to administer the
warnings, [d]efendant was very loud and
argumentative, and continuously interrupted the
officer. The officer stated to [d]efendant,
. . . [Y]ou have the right to remain silent
. . . Anything you say can and will be
used against you in a court of law . . .
You have the right to speak to an attorney
and have one present with you before
you're questioned. Okay? Once you've
answered questions, you have the right to
stop answering questions [2] . . . You have
the right to stop answering questions at
any point in time.
2
The judge pointed out that there was "a discrepancy" between the MVR
transcript and the MVR audio, both of which the judge reviewed. According
to the judge, the audio "clearly indicate[d] that Sgt. Flatley advised [d]efendant
that once he started answering questions, he had the right to stop answering
questions at any time."
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However, the officer was interrupted by
[d]efendant before he could advise [d]efendant that
. . . if he could not afford an attorney, one would be
provided to him. Afterwards, [d]efendant continued to
be very loud and argumentative, and the officer did
not have the opportunity to complete the warnings.
Nonetheless, the judge concluded that "the warnings used adequately
informed [d]efendant of his constitutional rights," and "any statements made
[were] admissible." Moreover, the judge reasoned that "[e]ven if [d]efendant
had not been properly advised of his Miranda rights," the statements made at
the police station four hours later were "nevertheless admissible because they
were part of the routine booking procedure and [d]efendant volunteered the
information without being asked."
Next, the judge considered the totality of the circumstances and
concluded "[d]efendant knowingly, intelligently, and voluntarily waived his
rights." The judge explained:
Defendant was [fifty-nine] at the time of the arrest.
While [d]efendant has not had an indictable conviction
since his 1993 convictions for arson and contempt, the
police were familiar with this [d]efendant based on
previous reports, as they were aware he might have a
BB gun in his apartment. Defendant made statements
immediately after being administered the Miranda
warnings, and again four hours later. Neither of the
lapses of time are viewed as significant. Although
there is a four-hour gap between [d]efendant being
advised of his Miranda rights and further statements
given to Ofc. Hopkins, there is no requirement for the
warnings to be repeated, as there was no intervening
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event between the arrest and the police department.
The statements made by [d]efendant were given in one
continuing event through the evening and there was
nothing which would dilute the efficacy of the original
warning.
Lastly, the circumstances surrounding the
statements do not involve physical abuse . . . . The
videos reflect that the statements made by [d]efendant
were a deliberate choice rather than one made from
coercion, deception, or intimidation, and were made
with the full awareness of what he was saying. . . .
There is no indication that [d]efendant could not
understand English, but rather, [d]efendant was able to
understand questions and talk with the officers.
Further, there is no indication that [d]efendant's
diabetes had any effect whatsoever on [d]efendant's
cognition or his ability to provide a valid statement or
waiver. Finally, the fact that [d]efendant chose to
speak after being advised of his Miranda rights is
highly probative in determining that the statements
given by the defendant were knowing, intelligent, and
voluntary.
Accordingly, the judge concluded "[d]efendant validly waived his Miranda
rights, and any statements made [were] admissible."
On appeal, defendant argues the judge's conclusion that the Miranda
warnings used adequately informed him of his constitutional rights "was error
as was the conclusion that [defendant] knowingly and voluntarily waived his
rights." Defendant asserts "his statement, and the BB gun found as a result of
this unwarned interrogation must be suppressed."
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"One of the most fundamental rights protected by both the Federal
Constitution and state law is the right against self-incrimination." State v.
O'Neill, 193 N.J. 148, 167 (2007). See U.S. Const. amend. V ("No person . . .
shall be compelled in any criminal case to be a witness against himself . . . .");
N.J.S.A. 2A:84A-19 ("[E]very natural person has a right to refuse to disclose
in an action or to a police officer or other official any matter that will
incriminate him . . . ."); N.J.R.E. 503 (same). In Miranda, "[t]he Court
resolved to put in place safeguards to protect the privilege and counteract the
'inherently compelling pressures which work to undermine the individual's will
to resist and to compel [an individual subject to custodial interrogation] to
speak where he would not otherwise do so freely.'" O'Neill, 193 N.J. at 167
(second alteration in original) (quoting Miranda, 384 U.S. at 467).
To ensure that an individual would have a meaningful
opportunity to exercise the privilege, the Court
decreed that an individual who is "subjected to police
interrogation while in custody at the station or
otherwise deprived of his freedom of action in any
significant way," "must be adequately and effectively
apprised of his rights." To that end, the Court
mandated that "unless other fully effective means are
adopted to notify the person of his right of silence,"
the following warnings must be given to a person in
police custody before interrogation begins:
He must be warned prior to any
questioning that he has the right to remain
silent, that anything he says can be used
against him in a court of law, that he has
A-2568-17T4
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the right to the presence of an attorney,
and that if he cannot afford an attorney
one will be appointed for him prior to any
questioning if he so desires. Opportunity
to exercise these rights must be afforded
to him throughout the interrogation.
The Court held that after the individual is advised of
his rights and given an opportunity to exercise them,
he then "may knowingly and intelligently waive
[them] and agree to answer questions or make a
statement." Unless the prosecution demonstrates that
the individual was informed of his rights and
knowingly, voluntarily, and intelligently waived them,
"no evidence obtained as a result of interrogation can
be used against him."
[Id. at 168 (alteration in original) (quoting Miranda,
384 U.S. at 467-77, 479) (citations omitted).]
Our Supreme Court has consistently "stressed, as a matter of state law ,"
that principles of Miranda inform our privilege against self-incrimination.
State v. Reed, 133 N.J. 237, 258-59 (1993). See, e.g., State v. Nyhammer, 197
N.J. 383, 400-01 (2009). While the Court "does not require that any specific
language be used to inform an accused of his rights," "[w]ords which convey
the substance of the warning along with the required information" are required.
State v. Melvin, 65 N.J. 1, 14 (1974).
In United States v. Patane, 542 U.S. 630 (2004), the United States
Supreme Court acknowledged that statements generated from questioning
conducted following partial Miranda warnings are inadmissible at trial,
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notwithstanding the fact that the defendant interrupted the completion of the
warnings. Id. at 635 n.1. Because the violation occurs "only upon the
admission of unwarned statements into evidence at trial," "'[t]he exclusion of
unwarned statements . . . is a complete and sufficient remedy' for any
perceived Miranda violation." Id. at 641-42 (alterations in original) (quoting
Chavez v. Martinez, 538 U.S. 760, 790 (2003)).
Here, it is undisputed that defendant was never informed of all the
Miranda rights, was never advised of his right to appointed counsel if he could
not afford to hire an attorney, and never acknowledged waiving his rights
orally or in writing. Nonetheless, the judge determined the substance of the
Miranda warnings was conveyed, and defendant knowingly, intelligently, and
voluntarily waived his rights. We disagree that the omission of a critical right
can be construed as "convey[ing] the substance of the [Miranda] warning[s]
along with the required information." Melvin, 65 N.J. at 14 (quoting United
States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968)). While neither a
"talismanic incantation," "a verbatim recital of the words of the Miranda
opinion" nor a "precise formulation of the warnings" has ever been "required
to satisfy [Miranda's] strictures," California v. Prysock, 453 U.S. 355, 359-60
(1981), omission of a right has never been countenanced in our courts. Thus,
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we conclude that in the circumstances of this case, the requirements of
Miranda were not met and both statements should have been excluded.
Likewise, we disagree with the judge's alternate determination that the
statement made at the police station was volunteered and thereby admissible.
While "Miranda has no application to statements that are 'volunteered,'" State
v. Brabham, 413 N.J. Super. 196, 210 (App. Div. 2010) (quoting Miranda, 384
U.S. at 478), "[i]nterrogation triggering the State's obligation to deliver
Miranda warnings requires 'words or actions on the part of the police that they
should have known were reasonably likely to elicit an incriminating
response.'" Id. at 210-11 (quoting Rhode Island v. Innis, 446 U.S. 291, 303
(1980)). Here, the undisputed evidence shows defendant was asked pointed
questions reasonably likely to evoke an incriminating response, namely, the
location of the BB gun.
The judge attributed the officer's omission of the critical warning to
defendant's continuous interruptions, essentially inferring some type of waiver
on defendant's part. "There is some authority for the proposition that a suspect
may waive Miranda warnings by interrupting their delivery." Id. at 209 n.3.
See State v. Perez, 157 N.W.2d 162, 164 (Neb. 1968); State v. Walden, 336
N.W.2d 629, 632 (N.D. 1983); State v. Thomas, 553 P.2d 1357, 1363 (Wash.
Ct. App. 1976); Johnson v. State, 772 S.W.2d 322, 324 (Ark. 1989); People v.
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Nitschmann, 41 Cal. Rptr. 2d 325, 327-28 (Ct. App. 1995). "Other courts have
held that the warnings cannot be waived." Brabham, 413 N.J. Super. at 209
n.3. See State v. Verdugo, 164 P.3d 966, 970-72 (N.M. Ct. App. 2007); State
v. DeWeese, 582 S.E.2d 786, 797 (W. Va. 2003); see generally 2 Wayne R.
LaFave et al., Crim. Proc. § 6.8(a) at 799 (3d ed. 2007) (discussing the issue of
waiver by conduct).
We believe the better approach is the one endorsed in Patane, 542 U.S.
at 635, 635 n.1 (noting the government's concession that a defendant's
interruption does not relieve the government of its obligation to deliver
Miranda warnings), and, of course, Miranda, 384 U.S. at 479 (holding that
"unless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can be
used"). Our conclusion "leaves us to consider whether the admission of the
statements defendant made . . . was harmless error," Brabham, 413 N.J. Super.
at 211, requiring reversal if the error "is of such a nature as to have been
clearly capable of producing an unjust result." R. 2:10-2. To be sure, "before
a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt." State v.
Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S.
18, 24 (1967)).
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At the jury trial, evidence of defendant's guilt was not overwhelming as
evidenced by the fact that he was acquitted of the most serious charge and
convicted of a lesser included disorderly persons offense. "While we have no
doubt that the admissible evidence is adequate to permit a conviction, it is not
sufficiently overwhelming to eliminate all reasonable doubt about whether the
verdict would have been different if the statements were excluded,"
particularly since "[t]he statements at issue provided additional and persuasive
evidence of guilt." Brabham, 413 N.J. Super. at 211-12. Accordingly, we
conclude that defendant's conviction for the disorderly persons resisting arrest
offense must be reversed and the case remanded for a new trial.
As to defendant's conviction for unlawful possession of the BB gun, we
accept defendant's representation that the judge's incorrect Miranda ruling led
directly to him later entering a negotiated guilty plea. Accordingly, we vacate
the guilty plea, and remand for further proceedings. However, we reject
defendant's contention that suppression of the BB gun is mandated as a remedy
for the Miranda violation. As the Court held in Patane,
the Miranda rule is a prophylactic employed to protect
against violations of the Self-Incrimination Clause.
The Self-Incrimination Clause, however, is not
implicated by the admission into evidence of the
physical fruit of a voluntary statement. Accordingly,
there is no justification for extending the Miranda rule
to this context. And just as the Self-Incrimination
Clause primarily focuses on the criminal trial, so too
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does the Miranda rule. The Miranda rule is not a code
of police conduct, and police do not violate the
Constitution (or even the Miranda rule, for that
matter) by mere failures to warn. For this reason, the
exclusionary rule . . . does not apply.
[Id. at 636-37.]
Reversed and remanded for further proceedings in conformity with this
decision. We do not retain jurisdiction.
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