STATE OF NEW JERSEY v. KHA DUC NGUYEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2090-06T52090-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KHA DUC NGUYEN,

Defendant-Respondent.

_______________________________________________________________

 

Argued April 17, 2007 - Decided August 1, 2007

Before Judges Coburn, Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-01-00039.

Robert J. Hawkes, Assistant Prosecutor, argued the cause for appellant (Wayne J. Forrest, Somerset County Prosecutor, attorney; Mr. Hawkes, of counsel and on the brief).

Robert Seelenfreund, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Seelenfreund, of counsel and on the brief).

PER CURIAM

The State, on leave granted, appeals from an October 16, 2006, interlocutory order suppressing statements made by defendant, Kha Duc Nguyen, during two separate police interviews on November 24 and 29, 2004, and statements made by his brother, Khuynh Nguyen, during a November 24, 2004, police interview.

This case arises out of the death of Tuan Nguyen, who is unrelated to defendant. On July 27, 2004, the body of Tuan Nguyen was discovered by his father, Joseph, and his step-mother, Xuan, at the bottom of a stairwell in their Somerville home. Tuan's body was covered in blood and an electrical cord was tied around his left wrist. An autopsy revealed that the cause of death was multiple sharp force injuries and asphyxia by strangulation. Tuan had seventy-eight separate stab wounds to his head, neck, chest, back, shoulders and hands.

The police discovered fingerprints in the blood on the walls of the stairway, but the police were not able to identify to whom the fingerprints belong. The fingerprints did not match defendant's, nor declarant's, nor those of anyone else fingerprinted during the investigation. In August 2004, the police also learned that Tuan's stepmother had paid defendant $20,000 to marry her sister so that the sister could come to the United States. It was also discovered that defendant maintained a checking account that listed Tuan's residence as his own. Based on this information, detectives went to the residence of defendant's family in the Port Reading section of Woodbridge Township on August 6, 2004. There they spoke with defendant's father, Khong, his sixteen year old brother, Khuynh, and his sister, Nhung. Because the father spoke only Vietnamese, Khuynh acted as translator. Khuynh informed detectives that he believed his brother was currently in Philadelphia. His sister, however, told the detectives that defendant was actually in Vietnam.

On August 17, 2004, detectives spoke with defendant's mother, also named Nhung, who told them she and her daughter had taken defendant to the airport on the night of July 29, 2004. The police later confirmed that defendant had gone to Vietnam on an Air Eva flight that left at 12:30 a.m. on July 30, 2004. The ticket had been purchased through a travel agent the day after the murder, July 28, 2004.

On August 18, 2004, detectives again visited the Nguyen residence in Port Reading, this time with a Middlesex County sheriff's officer who spoke Vietnamese. While police were speaking with defendant's father, Khong, defendant's mother began yelling at Khong in Vietnamese. After they left, the interpreting officer informed the detectives that Nhung had told her husband to shut up, that he was talking too much and had told the police too much.

On August 30, 2004, detectives again spoke with defendant's sister. She told them that defendant had asked to borrow her car on the day of the murder because he and Khuynh had something important to do. At some point in the investigation, the police decided not to have any further contact with defendant's family until they had an opportunity to speak with defendant upon his return from Vietnam.

In November 2004, police received a tip that defendant was coming back to New Jersey on the evening of November 23, 2004, on an Eva Airlines flight into Newark Liberty International Airport. That evening, several law enforcement officials, including Detectives Daniel Baldwin and Lewis DeMeo from the Somerset County Prosecutor's Office, Detective Michael Romanovsky of the Somerville Police Department, and Middlesex County Sheriff's Officer Tan Nguyen gathered at the airport. When the plane arrived, two detectives boarded the plane to meet defendant. They told defendant he was not under arrest but that they would like to talk to him about Tuan's death. Defendant told the detectives he was willing to talk to them and that he had come back to the United States to clear his name. Defendant then accompanied the detectives to the Somerset County Prosecutor's Office. Before they entered the vehicle, Baldwin advised defendant of his Miranda rights from a note card.

Upon arrival at the Prosecutor's Office, Baldwin, DeMeo and Romanovsky placed defendant into an interview room. Baldwin again advised defendant of his Miranda rights and had him execute a Miranda waiver form after assuring himself that defendant understood English. Lieutenant Stuart Buckman, who oversaw the investigation, watched defendant's interview on a monitor in his office. As this was a "pre-interview," Buckman was watching the live feed but not recording. The detectives began speaking with defendant about his activities prior to the date of the homicide and following that date.

Initially, defendant denied any involvement with the murder and denied being at the apartment where the murder occurred. However, he eventually stated that he had gone to Tuan's residence on the day of the murder. Once Buckman realized that defendant had placed himself at the scene of the homicide, he began to record the interview.

Over approximately the next two hours, defendant gave various accounts of the events of July 27, 2004. At first, defendant claimed that he had gone to the apartment for documentation so that he could change his driver's license at the Division of Motor Vehicles, to reflect that address as proof of his sham marriage. As questioning continued, Baldwin left the room and DeMeo and Romanovsky continued to speak with defendant, during which the following colloquy occurred:

LD: Kha you have to start thinking about this.

KN: Okay.

LD: It's a, when we were talking, if we start putting all this together and bring it to the grand jury, you're going to jail.

KN: Okay.

LD: For a long, long time.

KN: Okay.

LD: If you start telling us what happened, what really happened that day, then we may be able to do something for you.

KN: Well, if all the clues you get, you guys have saying that I did it, I have nothing to say to you. I, I mean, you know.

LD: Well listen.

KN: I've been cooperating.

LD: Listen to me.

KN: Cooperating, you know.

LD: I know you are. But I don't want to see you throw your,

KN: I understand.

LD: You I, I told you this, I don't want you to see it. . . .

KN: Right.

LD: Piss your life away.

KN: Right.

LD: I just feel like you're not telling me the whole truth.

KN: I . . .

LD: I think somebody else did this and you're trying to cover for them.

KN: Why would I try to cause some . . .

LD: I don't know.

KN: Cause some anybody else, why.

LD: You tell me.

KN: No.

Following approximately six seconds of silence, the interrogation continued. Defendant then proceeded to implicate first a stranger in the murder, then a man named Lam Ta. Defendant claimed that Lam had gotten into an argument with Tuan while he was there and that Lam had forced him to tie up Tuan with an electric cord while Lam stabbed Tuan to death. When the police confronted defendant with the fact that Lam's fingerprints did not match those found in the blood spatter at the scene, defendant then told Buckman that he would tell him the truth.

Defendant admitted that he had entered the apartment with his brother, Khuynh, and in the course of a robbery, stabbed the victim to death. He claimed his brother was there, but only tied up Tuan and did not participate any further. Defendant then ransacked the apartment, taking a few hundred dollars, a laptop computer and a musical keyboard. He changed into some of Tuan's clothing and placed his own bloody clothes and the knives into a bag. Defendant and his brother drove to a rest area where they threw away a bag with the clothes and knives.

Based on his statements, the police went to Port Reading to find Khuynh, to obtain his fingerprints, and to interview him as a second suspect in the homicide. Khuynh claimed that he was not with defendant when he killed Tuan and that he only helped defendant to dispose of the bag with the knives and bloody clothing. Khuynh stated that defendant had admitted to him that he had killed someone during a robbery. The police determined that Khuynh's fingerprints did not match those found at the crime scene.

On Monday, November 29, 2004, Baldwin and DeMeo went to the Somerset County jail to speak with defendant. Again, defendant was advised of his Miranda rights and signed a waiver. When asked by the detectives to tell them who was with him during the murder, defendant reaffirmed that what he had told them previously was the truth and that he had nothing to add.

On January 19, 2005, a Somerset County Grand Jury returned Indictment No. 05-01-00039, charging defendant with first degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and third degree hindering of apprehension of prosecution, N.J.S.A. 2C:29-3b(1) (count five).

Following a Miranda hearing on September 19, 20, 21, 25, 2006, the judge ruled defendant had invoked his right to remain silent during his initial interview with the police and that all subsequent statements made by defendant were suppressed. Following this ruling, the court held a "taint" hearing on September 26, 2006. At the conclusion of this hearing, the court, in an oral decision on October 3, 2006, precluded the testimony of defendant's brother as fruit of the poisonous tree. That same day, the judge granted defendant's motion to suppress his statements made on November 29, 2004, finding the statement was not sufficiently attenuated from the prior statement and that it was inextricably intertwined. By order dated December 14, 2006, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments:

POINT I: THE TRIAL COURT ERRED WHEN IT FOUND THAT DEFENDANT HAD INVOKED HIS RIGHT TO REMAIN SILENT.

POINT II: TESTIMONY OF DEFENDANT'S BROTHER, KHUYNH, WAS IMPROPERLY PRECLUDED.

POINT III: DEFENDANT'S NOVEMBER 29, 2004, STATEMENT IS ADMISSIBLE UNDER THE ATTENUATION DOCTRINE.

In granting defendant's motion to suppress his statement to police, the court found that defendant had invoked his Fifth Amendment right to remain silent when he stated, "Well, if all the clues you get, you guys have saying that I did it, I have nothing to say to you. I mean, you know." The court excluded all of defendant's statements following those words.

The State contends that the court erred when it found that defendant had invoked his right to remain silent because his words could not be reasonably construed as an invocation of his right to remain silent, and that the detectives were not obligated to seek clarification from the defendant. "The purpose of the exclusionary rule is to deter police misconduct and to preserve the integrity of the courts." State v. Johnson, 118 N.J. 639, 651 (1990). If a defendant "indicates in any manner, at any time . . . during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. Once a defendant invokes the right to remain silent, the invocation must be "scrupulously honored." Michigan v. Mosely, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975); State v. Johnson, 120 N.J. 263, 282 (1990); State v. Hartley, 103 N.J. 252, 260-61 (1986). "Scrupulously honoring" a defendant's right to silence requires a cessation of questioning once the defendant asserts his Fifth Amendment right. Johnson, supra, 120 N.J. at 282 ("Where the invocation of the right to remain silent is followed by no interruption in questioning, and where the interrogation continues as if nothing had happened, the right is not scrupulously honored."). Further, if police are unsure whether a defendant is asserting his right to silence, they must either stop the interrogation completely or "ask only questions narrowly directed to determining whether defendant was willing to continue." Id. at 284. See also State v. Wright, 97 N.J. 113, 120 n.4 (1984).

Nevertheless, "[l]aw enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." State v. Martini, 131 N.J. 176, 233 (1993) (citation omitted). However, if a defendant makes an apparently ambiguous statement, the police have an obligation to ask clarifying questions to resolve the ambiguity. State v. Kennedy, 97 N.J. 278, 288 (1984). Specifically, a suspect is not required to express a desire to terminate the interrogation "with the utmost of legal precision." State v. Bey, 112 N.J. 45, 65 (1988).

We assess a judge's decision to exclude evidence under an abuse of discretion standard. State v. Harvey, 151 N.J. 117, 166 (1997). In this matter, the judge heard from all the witnesses, read the transcripts of defendant's interview, and was able to watch defendant's videotaped statements to police. The judge found that defendant's statement, "I have nothing to say to you," when viewed in the context of the overall interrogation was an invocation of his right to remain silent. The judge observed, after viewing the videotaped statements, that after his invocation, defendant folded and clasped his hands, folded his arms across his chest, sat straight up in the chair, and became quiet with his head down. He remained silent for approximately six seconds until DeMeo began to talk to him again. The detectives took no steps, as they were obligated, to determine whether defendant was, in fact, invoking his right to remain silent.

Having viewed the tapes ourselves, we cannot say that the court's decision to exclude the evidence was not based on sufficient credible evidence within the record. State v. Locurto, 157 N.J. 463, 471 (1999). Consequently, we find no abuse of discretion.

Because this statement was properly excluded, we also agree Khuynh's statement to police, a direct result of defendant's statements, was correctly excluded as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453 (1963). The State argues that Khuynh's statements should be admissible under the doctrine of inevitable discovery. Under the inevitable discovery doctrine, the State may use information unlawfully obtained if that information would have ultimately or inevitably been discovered by lawful means. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387-88 (1984). For the purposes of the inevitable discovery doctrine, the State must show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[State v. Sugar, 100 N.J. 214, 238 (1985) ("Sugar II")].

As the court correctly noted, the police conducted a single interview with Khuynh during the five month period between the murder to defendant's statements to police. They only moved to take a formal statement from Khuynh after his brother implicated him in the crime. During their interview with Khuynh the detectives stated:

DB: Prior to this date we didn't drag you out of your house or ask you to come here. We had no clue you were even in the house. Your brother told us about that. If I would have thought you were involved with this two months ago believe me. . . .

LD: We would have been there.

DB: We would have been at your house asking you to come in . . . and prove you were in that house.

Plainly, Khuynh gave his incriminatory statements only after he was confronted with the illegally obtained statement given by his brother. There is no guarantee that if police had brought Khuynh in for a formal interview, they would have obtained the same inculpatory statements without the benefit of defendant's statement. The statements are inextricably related, as one prompted the other and their exclusion is supported by sufficient credible evidence.

Finally, the court excluded defendant's jailhouse statement on the basis that this statement was not sufficiently attenuated from the constitutional violation. We agree.

While true that statements that follow an unlawfully obtained statement may be used at trial where the subsequent statement was obtained "by means sufficiently distinguishable to be purged of the primary taint," Johnson, supra, 118 N.J. at 652-54, a second statement will be suppressed if it is "so inextricably entwined with the first interrogation procedure as to be part of that same procedure." Hartley, supra, 103 N.J. at 279. In determining whether statements are sufficiently attenuated a court must consider: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Johnson, supra, 118 N.J. at 653.

Mere lapse of time is insufficient to validate an otherwise illegal statement. Thus, the passage of five days between statements is not determinative. More important in this assessment is the fact that there was no demonstrably effective break in the chain of events leading from the impermissible extraction of evidence to the follow-up interrogation. Defendant was in jail during the intervening five days and he did not consult with counsel or appear before a magistrate during that time. His second statement consisted merely of a confirmation of the truthfulness of his earlier, inadmissible statements to police. There was no fresh or untainted admission of guilt. Consequently, we decline to disturb the court's exercise of discretion to exclude the second statement.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

LD refers to Detective Lewis DeMeo. KN refers to defendant Kha Duc Nguyen. MR refers to Detective Michael Romanovsky.

(continued)

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A-2090-06T5

August 1, 2007