STATE OF NEW JERSEY v. SEAN HOFFMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2661-05T52661-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

vs.

SEAN HOFFMAN,

Defendant-Respondent.

______________________________________________________________

 

Argued: September 13, 2006- Decided October 3, 2006

Before Judges Cuff and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-04-289.

G. Harrison Walters, Assistant Prosecutor, argued the cause for appellant (Ronald J. Casella, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).

Stephen P. Kernan, argued the cause for respondent.

PER CURIAM

By leave granted, the State of New Jersey appeals an interlocutory order suppressing the statements made by defendant, Sean Hoffman, during interrogation by members of the Millville Police Department and the Cumberland County Prosecutor's Office. For the reasons set forth below, we now reverse that order and remand the matter to the trial court for further proceedings.

The Cumberland County Grand Jury returned Indictment 05-04-00289-I/B charging defendant with the following crimes: Sexual Assault in the Second Degree in violation of N.J.S.A. 2C:14-2c(4)(Counts One, Two, Four and Five); Prostitution in the Third Degree in violation of N.J.S.A. 2C:34-1 (Count Three); Endangering the Welfare of a Child in the Third Degree in violation of N.J.S.A. 2C:24-4a (Count Six); Witness Tampering in the Third Degree in violation of N.J.S.A. 2C:28-5a(1) (Count Seven); Hindering Apprehension or Prosecution in the Third Degree in violation of N.J.S.A. 2C:29-3b (Count Eight); and Criminal Sexual Contact in the Third Degree in violation of N.J.S.A. 2C:14-3a (Count Nine). Co-defendants Shawn Heaton and Ricky Bender were charged with assorted crimes in the same indictment. They have both pled guilty to endangering the welfare of a child in the third degree, in violation of N.J.S.A. 2C:24-4a. They are not parties to this appeal.

Before defendant's trial commenced, his counsel moved "for a hearing to determine the admissibility of Defendant's statement/confession (Jackson-Denno-Miranda hearing)." He also sought a "(f)inding that the State used improper inducements or promises to obtain the Defendant's statement/confession thereby rendering the statement/confession involuntary." On November 1 and 2, 2005, the trial court conducted a hearing pursuant to N.J.R.E. 104(c) at which the State produced the testimony of Detective Robert Bernard of the Cumberland County Prosecutor's Office and Detective Bruce Allen Cornish of the Millville Police Department. On December 2, 2005, the trial court entered an order suppressing statements made by Hoffman to the officers. In a written opinion, the trial judge concluded,

In sum, defendant should have been fully apprised of all charges pending against him prior to waiving his rights. In the absence of such an appraisal, it cannot be said that his waiver was knowingly or voluntarily made. Accordingly, all statements provided by defendant during the course of the interrogation must be suppressed.

In reaching this conclusion, the judge relied primarily upon the holding in State v. A.G.D., 178 N.J. 56 (2003), and to a lesser extent, the holding in State v. Thomas, 111 N.J. Super. 42 (Law Div. 1970). The trial judge erroneously expanded the scope of the holding in A.G.D. and Thomas is distinguishable on its facts and, given its analytic underpinnings, we question its continued vitality.

Pursuant to our standard of review, we are bound by the factual findings made by the trial court to the extent they are supported by sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999). As noted in State v. Barone, 147 N.J. 599 (1997), "[t]he test is 'whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 615 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In large part, the factual findings of the trial court are based upon the testimony given by Cornish at the N.J.R.E. 104(c) hearing and they are based upon sufficient credible evidence present in the record.

The trial judge concluded that the investigation that led to Hoffman's arrest on November 23, 2004, commenced two days earlier on November 21 when Cornish met with M.S., fifteen years of age, regarding an alleged sexual assault upon her. During the interview, M.S. told Cornish she had been forcibly abducted and raped by an unknown white male earlier that day. Cornish then allowed M.S. to call someone she described as her boyfriend, a male named "Sean." M.S. told Cornish that she also had sex with "Sean" that day. The following day, November 22, Cornish and Bernard transported M.S. to police headquarters to take a formal statement. They suspected her truthfulness, and, after further questioning, she recanted her prior statements. She now told the officers that she had been engaging in acts of prostitution with three men over a significant period of time.

Two of the individuals were co-defendants Heaton and Bender. The third individual was Hoffman. M.S. told the officers that she and defendant, thirty-seven years of age, began their sexual relationship in June or July of 2004 when defendant paid her for sexual intercourse. The incidents continued over the next several months.

Also on November 22 the officers went to defendant's home. When questioned, defendant indicated that he knew M.S. and that he had a friendly relationship with her. The officers did not provide Hoffman with Miranda warnings. Cornish did inform defendant that he should have no further contact with M.S.

On November 23, the officers again interviewed M.S. She told them defendant had contacted her by phone the night before and had threatened her for disclosing his name to the officers. The officers then went to his home. He acknowledged that he had called M.S. the night before because he was angry. The trial court concluded, "Defendant was subsequently placed under arrest for tampering with a witness." He was transported back to the police headquarters for interrogation.

The judge also found,

Defendant was advised that he was being charged with sexual assault, however the detectives knew at the time that he would be charged with a laundry list of other offenses. Defendant was Mirandized and waived his rights, agreeing to speak with the detectives without an attorney present. (Emphasis supplied).

Defendant told the officers he engaged in sexual intercourse with M.S. for money and that he knew she was only fifteen.

In suppressing defendant's statements, the trial court observed,

The key issue in the case at hand is whether the procedural safeguards provided by the 6th amendment requires a defendant in custody be advised of all charges the police know are pending against him prior to questioning.

Relying upon A.G.D., supra, and Thomas, supra, the judge answered the question in the affirmative and concluded that defendant had not "been apprised of all charges pending against him prior to waiving his rights." The waiver of those rights, therefore, was not "knowingly or voluntarily made."

Statements obtained by the police during custodial interrogation are barred from evidence unless the defendant has been advised of his constitutional rights. Miranda v. Arizona, supra, 384 U.S. at 444-45, 467-79, 86 S. Ct. at 1612, 1624-30, 16 L. Ed. 2d at 706-07, 719-26 (1966); see also, State v. Knight, 183 N.J. 449, 461-63 (2005). For statements made to the police in custodial interrogations to be admissible, the State must prove beyond a reasonable doubt that the defendant waived those rights, and that his decision to do so was a knowing, intelligent, and voluntary one in light of the totality of the circumstances. Knight, supra. The State must also prove, beyond a reasonable doubt, that defendant's statement to the police was not the product of coercion or "official misconduct." Jackson v. Denno, supra, at 378 U.S. at 376-77, 84 S. Ct. at 1780-81, 12 L. Ed. 2d at 915-16 (1964); Knight, supra.

The facts in A.G.D., supra, posed two questions succinctly framed and answered by the court at the outset of its opinion.

This appeal poses two questions. The first is whether prosecutors or their representatives, including the police, properly may interrogate a suspect without the consent of defense counsel before an indictment has been obtained but after the State has filed or issued a criminal complaint or arrest warrant against that suspect. The answer to that question is yes. In view of that answer, the second question is whether the suspect's waiver of his right against self-incrimination is valid when the police fail to inform him that a criminal complaint or arrest warrant has been filed or issued against him and he otherwise does not know that fact. The answer there is no. Because the police did not so inform defendant in this case, we hold that his waiver of rights is invalid as a matter of law. As a result, we must suppress defendant's incriminating statements given to the police.

[178 N.J. at 58]

In the case before us, the facts differ substantially from those in A.G.D. Furthermore, the judge significantly expanded the Supreme Court's general holding as set forth above, and, in so doing, placed an unreasonable burden upon law enforcement officials never intended by the A.G.D. Court.

In A.G.D., investigators secured a taped statement from a minor victim who alleged the defendant had performed cunnilingus upon her. They obtained an arrest warrant for the defendant. The officers then went to the defendant's home ostensibly to question him about allegations of sexual abuse against him. They neither executed the arrest warrant nor told him that one had been issued. Id. at 60. After indicating to the defendant he was not under arrest, the investigators requested that he accompany them to the prosecutor's office. He did.

Thereafter, the State's version of events and the defendant's version of events differed significantly. However, by all accounts, at some point, the defendant was issued Miranda warnings and signed a written waiver form. The defendant then made a written, inculpatory statement to the officers and was subsequently arrested. Ibid.

The A.G.D. Court initially considered the defendant's argument under the Sixth Amendment of the United States Constitution and Article 1, paragraph 10 of the New Jersey Constitution. The defendant urged that any statement made during interrogation that occurred after a formal complaint or arrest warrant had issued, and without defense counsel present, was a violation of those rights and should be suppressed as a matter of law. First, the Court acknowledged that in State v. Sanchez, 129 N.J. 261 (1992), it had established a "bright line" rule with respect to any interrogation that occurs after an indictment has been returned against the defendant.

Under that rule, courts will suppress a defendant's incriminating statements elicited during a post-indictment interrogation without counsel's consent, notwithstanding a defendant's purported waiver of rights. Such a waiver is insufficient as a matter of law under Article I, paragraph 10.

[A.G.D., supra, 178 N.J. at 64.]

Subsequently, in State v. Tucker, 137 N.J. 259, 289-90 (1994), cert. denied, 513 U.S 1090, 115 S. Ct. 751, 130 L.Ed 2d 651 (1995), the Court declined to expand its holding and confer those Constitutional protections at an earlier stage of the criminal proceeding, i.e., where the defendant had been formally charged and had made an initial appearance in court. The A.G.D. Court then declined to expand the right to counsel to any interrogation that preceded the formal indictment of the defendant.

Accordingly, we conclude that prosecutors and their representatives, including the police, properly may interrogate a suspect without defense counsel's consent before an indictment has been obtained but after the government has filed or issued a criminal complaint or arrest warrant against that suspect.

[A.G.D., supra, 178 N.J. at 66].

This portion of A.G.D.'s holding is not implicated in this appeal. However, the Supreme Court then considered the second question posed. "The remaining issue focuses on whether defendant's waiver of his right to remain silent was valid in view of the fact that the detectives did not inform him that an arrest warrant had been issued against him." Ibid.

Although defendant did not lack sufficient age or maturity to understand and voluntarily waive his rights, the Court concluded that he had been "deprived of information indispensable to a knowing and intelligent waiver of rights," because an arrest warrant had already issued against him. Id. at 68. Without advising the defendant of his "true status," the Court concluded the State could not carry its burden of establishing an "informed waiver of rights, regardless of other factors that might support (the) confession's admission." Ibid. Nonetheless, the A.G.D. Court strictly limited the scope of its decision.

Our holding is not to be construed as altering existing case law in respect of the manner in which the police conduct interrogations other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued. In that regard, we do not perceive our holding as unduly burdening existing police practices.

[Id. at 68-69]

Initially, the factual circumstances that led up to Cornish's interrogation of Hoffman differ vastly from those that preceded the defendant's interrogation in A.G.D. Unlike that defendant, Hoffman was advised that he was under arrest both at the time the officers confronted him at his home, and at the time he was interviewed at police headquarters. The trial court found that at his home he was advised that he was being arrested for "witness tampering." Subsequently, at police headquarters, he was advised that he was being "charged with sexual assault." On both occasions, he was advised that M.S. was the victim. Hoffman was provided with his Miranda warnings, and executed his written waiver form, with full knowledge of his "status" as a criminal defendant in police custody. He was completely aware that the "veil of suspicion" had been "draped" upon him and that the "risk of his criminal liability" had been significantly "heightened." Id. at 68.

Contrary to the judge's conclusion that defendant had not been "fully apprised of all charges" against him, defendant was advised of at least two of the charges against him prior to waiving his rights, including the most serious one. He was also told the identity of the victim of these charges.

Further, we note that neither A.G.D. nor any other case cited by the judge or defendant commands the conclusion that a defendant must be advised of all charges against him in order for the State to meet its burden of demonstrating a voluntary waiver of rights prior to interrogation. Indeed, A.G.D.'s holding only requires a defendant be advised that "a criminal complaint or arrest warrant has been filed or issued" in order for his waiver to be potentially voluntary. Id. at 68-69.

In reaching its conclusion that Hoffman needed to be advised of all charges against him before a voluntary waiver could be given, the judge seized upon certain language in Thomas, supra, 111 N.J. Super. at 42. However, Thomas, too, is factually dissimilar from the case at hand. There, a county welfare investigator working as an agent of the county prosecutor's office called upon welfare recipients at their homes in an attempt to discern whether they were living with paramours or otherwise committing welfare fraud. The defendants were not told that they were being investigated criminally, only that they needed to be truthful or they might lose their welfare benefits. Id. at 45. The court characterized the investigative focus upon the defendant as a "critical stage" in the proceedings that conferred certain rights upon the defendants. Ibid. In suppressing the statements obtained, the court concluded that Miranda applied, despite the fact that the defendants were in their home and not in custody. In describing those rights, the court concluded that Miranda required that "a defendant must be informed of the nature of the charges against him with specificity." Id. at 48.

The trial court apparently seized upon the language, "with specificity," and concluded defendant needed to be advised of all charges within the contemplation of the officers. First, we note that Thomas' summary of the requirements of Miranda was mere dicta since, on its facts, the case did not deal with the manner by which law enforcement officers issued the warnings. Second, the factual differences between this case and Thomas are quite obvious. Here, defendant was, in fact, under arrest and in custody; thus, none of the chicanery that existed in Thomas was found by the court here. Third, unlike the defendants in Thomas who received no Miranda warnings whatsoever, defendant had been issued his Miranda warnings and had been advised of the most serious charge pending against him before any waiver. Lastly, we question any continued vitality of Thomas as precedent in light of subsequent jurisprudence. The Thomas court concluded that the investigatory stage was a "critical stage" of the proceedings triggering the Miranda warnings. Id. at 45. One need look no further than State v. P.Z., 152 N.J. 86 (1997) for a detailed discussion of the refinements this concept has undergone in the years since Thomas was decided.

Finally, the trial judge characterized his decision as a "rational expansion of a defendant's protections against self-incrimination." Perhaps, but it was an expansion that was specifically not condoned by the Court's decision in A.G.D.

The undue burden placed upon the police by the trial court's expansion of the holding is obvious. The police are frequently not in a position to advise any defendant of all the charges he may face. Frequently, it is the prosecutor who will make charging decisions at a later point in the criminal justice process. On yet other occasions, the full and complete panoply of charges facing any criminal defendant may not be ascertained with certainty until after the grand jury has returned an indictment. Adoption of the trial court's expansion of the A.G.D. holding would leave the arresting police officer in the untenable position of having to advise a suspect of every possible charge supported by probable cause at the time of arrest lest the officer be accused at a later time of intentionally misleading the suspect as to all charges contemplated. Indeed, we note here that even if Cornish advised defendant of every charge that was contained on the three formal complaint/warrants he executed in this case, he would not have advised him of all the charges Hoffman ultimately faced when indicted.

Furthermore, the standard adopted by the trial judge would essentially require a judge at any N.J.R.E. 104(c) hearing to divine the actual state of mind of the arresting officer when he advised a suspect of the charges pending against him prior to any waiver. Any deviation between that list and the ultimate list of charges defendant faced at trial would result in the court necessarily having to reach conclusions concerning why the officer did, or did not, include any particular charge in the list. Was the omission of a charge the result of intentional chicanery; or, was it an innocent mistake by the officer? These questions and the need to resolve them many months or years after the events inevitably flow from the trial court's decision and expansion of the holding in A.G.D.

Therefore, we reverse the order suppressing the statements made by defendant during his custodial investigation. The trial court concluded that defendant's waiver of his Miranda rights was not voluntary as a matter of law. Since the court did not consider whether the State had met its burden of proof as to the voluntary nature of Hoffman's waiver of his rights under the totality of the circumstances, we remand this matter to the trial court for such consideration and further proceedings consistent with this opinion.

Reversed and remanded.

 

Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We note that the citation to Miranda by the Thomas court as authority for this point does not, in fact, include any language that obligates law enforcement to inform the defendant of the charges against him "with specificity."

The three complaint/warrants executed by Cornish contained a total of seven, not nine, charges. They contained one count of aggravated sexual assault, not three counts of sexual assault. They also contained a charge of Luring a Minor in violation of N.J.S.A. 2C:13-6; defendant was not indicted on that charge.

(continued)

(continued)

4

A-2661-05T5

RECORD IMPOUNDED

 

October 3, 2006