STATE OF NEW JERSEY v. KENNETH WELDON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1058-08T41058-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KENNETH WELDON,

Defendant-Respondent.

____________________________________________________________

 

Argued February 11, 2009 - Decided

Before Judges Axelrad, Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-12-1116.

James O. Turner, Assistant Prosecutor, argued the cause for appellant (Ronald J. Casella, Cumberland County Prosecutor, attorney; Mr. Turner, on the brief).

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

PER CURIAM

By our leave granted, the State appeals from the August 21, 2008 order that suppressed defendant Kenneth Weldon's "out-of-court" statement made to police. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

I.

Defendant was indicted by the Cumberland County grand jury, along with co-defendant Sean Pyfer, for the "home invasion" burglary and robbery of Charles May in Fairfield Township on April 15, 2007. At a pre-trial Jackson-Denno-Miranda hearing, the State called as its sole witness New Jersey State Police Detective Darren Pulman. Pulman, one of only two detectives assigned to the Port Norris barracks, was off duty when he was specifically summoned to speak to defendant during the early morning hours of April 15. Pulman had a "previous relationship with [defendant]" and when he arrived at the barracks, defendant was already there under arrest. The second perpetrator of the crime, eventually identified as Pyfer, remained unidentified and at-large. Pulman woke defendant, who was sleeping in a holding cell, escorted him into the interview room where another trooper was present, and commenced taping the conversation. The trial judge had the benefit of the audiotape and a transcript prepared therefrom.

Pulman read defendant his Miranda rights. Defendant acknowledged he understood, and executed a form card evidencing that. Pulman initiated the conversation by stating that the victim identified defendant and knew him by name. Pulman also tried to mitigate defendant's involvement in the crime, shifting blame to the other unidentified actor. He told defendant, "I'm just looking for a little cooperation from you as to . . . when this thing started to go bad [] what [] happened?" Defendant responded, "I'm not [] gonna answer any question[s,]" "[w]ithout speaking to my attorney."

Pulman then said:

Alright, I respect that Ken, but [] just remember this, okay. The decisions you make in this room are going to affect what happens to you and that's fine if you don't want to dime out your buddy, but obviously you know the consequences of [] remaining silent[.] [I]t's not like this is . . . a who done it, it's not like . . . we don't know what's going on . . . . [T]he victim ID'd you . . . . ["]I knew him all my life, its Kenny Weldon.["] He . . . says, ["]hey its Kenny,["] then the other guy starts acting crazy[.] [S]o . . . if you don't want to talk, I mean that's fine we'll do what we got to do and we'll be done. We'll put you back in the cell and you'll go to jail, and that'll be it. Alright?

Defendant responded, "[a]lright[,]" and Pulman escorted him back to his cell.

At this point, Pulman "did a little more investigating" of the incident by going to the scene of the crime, the victim's home. Thereafter, defendant was "processed." The formal complaint/warrant charging him with "burglary and robbery" was completed, a Superior Court judge was contacted, and bail was set at $200,000. Pulman returned to defendant's cell to provide him with "his green sheets," i.e., his copies of the complaint, but no further conversation took place between defendant and the detective. Twenty minutes to "a half an hour" later, defendant asked to speak to Pulman. He was brought back to the interview room where Pulman, still unarmed, in plainclothes, and now alone with defendant, again recorded the conversation. The conversation began at 10:26 a.m. and ended twelve minutes later at 10:38 a.m.

Defendant did not ask for anything, but was "bummed out," "upset," and "wasn't happy," having now seen the complaint and the bail set on the charges. Defendant affirmed that no one tried to speak to him since the first interview ended, that he "asked to talk" to Pulman, and that he understood his Miranda rights. Pulman again advised defendant of those rights, and defendant again signed a "Miranda card," after which he supplied incriminating information regarding his involvement in the burglary and robbery.

On cross-examination, Pulman testified that when he arrived at the barracks, he reviewed the investigation of the case to that point. It was "maybe between 5 a.m. and 6 a.m." before he woke defendant up to speak to him. Pulman detected no odor of alcohol on defendant's breath. Pulman knew defendant, had spoken to him on prior occasions when he had been arrested, and had taken a statement from him in the past. Pulman acknowledged that during the initial interview, he "essentially" told defendant that "[n]ot cooperating" would have a negative influence on his case, but insisted he did not intend to convey any impression that negative consequences would flow from defendant "invoking his right" to counsel.

After the first interview was terminated, Pulman went to the scene of the crime for "maybe an hour or so, and then went [] down the road to [defendant's] house" to speak with his mother. Pulman estimated that it took thirty minutes to drive from the barracks to the scene, and all told, his investigative activities may have taken "a few hours." When he returned, he contacted the judge, bail was set, and the formal complaint/warrants were typed. Pulman did not tell the judge anything about defendant's lack of cooperation with the police or his invocation of his right to counsel, and he did not ask the judge for a "high bail." He insisted that defendant's decision not to initially cooperate played no role in determining the actual charges contained in the complaints. The trial judge, in a written opinion that accompanied the order, set forth his findings of fact and conclusions of law. He focused on Pulman's admonition to defendant after invoking his right to counsel, quoting verbatim from the transcript. The judge also recounted certain facts that were "beyond dispute": 1) that defendant was "properly advised of his Miranda rights before the first phase of the interview began"; and 2) that defendant "understood his rights[,]" was provided with copies of the criminal complaints, and was "re-advised of his Miranda rights, albeit in a hurried and somewhat abbreviated fashion, before any substantive questioning began during the second phase of the interview." The judge also found "this was not the first time that defendant had been arrested, advised of his Miranda rights or given a statement to [] Pulman."

The judge further noted that "[d]uring the second phase of the interview, defendant never asked to stop the questioning[,] . . . did not renew his request to speak to his attorney[,]" was not threatened, promised anything, or struck, and had no "difficulties understanding the questions." Pulman "was not overbearing in his questioning during the second phase. On the contrary, the tone was conversational."

According to the judge, "[t]he sole issue . . . [wa]s whether [] Pulman's statement . . . after [defendant] had exercised his right to speak to an attorney [and] before answering any questions was coercive or otherwise violated defendant's constitutional rights." He concluded those comments "were coercive in that they amounted to a thinly veiled threat . . . that [defendant] had better give a statement or there would be negative consequences." The impact of Pulman's comments, according to the judge, "continued to linger and fester in the mind of defendant while he waited in the holding cell." Without specifically determining how much time elapsed between the first and second interrogations, the judge further noted, "the mere passage of time did not dissipate the infirmity[,]" and concluded that "[t]he motivating force behind [] defendant's change of position was likely [Pulman's] comments, not some independent decision-making process of the defendant."

The judge further concluded that Pulman's re-issuance of the Miranda rights was "not dispositive," noting they were administered in a "perfunctory" fashion. This "did not eliminate or reduce the corrosive effect of the earlier comments." As a result, the judge suppressed defendant's statement.

II.

The State conceded at oral argument before us that Pulman's comments made after defendant asked for counsel were the "functional equivalent" of interrogation. See Rhode Island v. Innis, 446 U.S. 291, 302, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 308 (1980) (holding that "the definition of interrogation can extend [] to words or actions on the part of police officers that . . . were reasonably likely to elicit an incriminating response"); accord State v. Stott, 171 N.J. 343, 365 (2002). The State further concedes, as it must, that this was improper, since defendant had clearly and unequivocally invoked his right to counsel. See Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723 ("[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease"). Once a person has invoked the right to remain silent, this choice must be "scrupulously honored" by investigators. State v. Hartley, 103 N.J. 252, 255-56 (1986) (citations omitted).

But, contrary to the judge's characterization of this being the "sole issue," the State contends that evaluation of the totality of circumstances occurring after Pulman's improper comments leads to the conclusion that defendant voluntarily waived his rights despite his prior request for counsel. See State v. Nyhammer, ___ N.J., ___, ___ (2009) (slip op. at 23) (voluntariness of defendant's post-warning statement is to be judged by the "totality of the circumstances"). We agree.

"If an accused does initiate a conversation after invoking his rights, that conversation may be admissible if the initiation constitutes a knowing, intelligent, and voluntary waiver of the accused's rights." State v. Chew, 150 N.J. 30, 61 (1997). "[T]he suspect [must] personally and specifically initiate[] the conversation." State v. Burris, 145 N.J. 509, 519 (1996) (citing Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 386 (1981)); State v. Fuller, 118 N.J. 75, 83 (1990). The State must also show that in re-initiating the conversation, the defendant "was inviting discussion of the crimes for which he was being held." Fuller, supra, 118 N.J. at 82.

"Once proper initiation has been established, the State must demonstrate beyond a reasonable doubt that the accused made a knowing, intelligent, and voluntary waiver beyond a reasonable doubt." Chew, supra, 150 N.J. at 65. Whether the State has proven such a waiver depends upon the "particular facts and circumstances surrounding th[e] case[.]" State v. Adams, 127 N.J. 438, 447-48 (1992) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938)). "The circumstances that a court may consider include the duration of the interrogation, the advice as to constitutional rights, defendant's age, intelligence, level of education, and the length and conditions of the detention." Chew, supra, 150 N.J. at 65. "The State bears a 'heavy burden' of demonstrating that the waiver was knowing, intelligent, and voluntary." Id. at 61 (quoting Hartley, supra, 103 N.J. at 260).

The facts in Chew are instructive. There, after an extensive investigation that included prior non-custodial interrogation of the defendant, police arrived at his home and arrested him during the morning hours for the murder of his girlfriend. Chew, supra, 150 N.J. at 45. As he left in police custody, the defendant told his mother to call his attorney. Ibid. With knowledge of this request, police nevertheless administered the defendant his Miranda rights and began to interrogate him at 10:53 a.m. Id. at 46. The defendant provided two statements, one taped by detectives, inculpating himself to some degree. Thirty minutes after the initial interrogation finished, the defendant requested and was granted permission to call his attorney, and no further interrogation took place. Ibid. The defendant was then taken to another police station in a different county and formally charged with the murder at 4:00 p.m. Ibid.

Two hours later, the defendant, who had intermittently received medication for back pain throughout the day, was crying and asked to speak to the lead detective. Id. at 46-47. After asking "what [he] was facing," and being told he faced a long period of imprisonment, but not told about a possible death sentence, the defendant began to speak about the murder. Ibid. He was re-Mirandized, executed a waiver, and gave a second taped, incriminating statement. Ibid.

The Supreme Court concluded that the trial judge 1) properly suppressed the defendant's first statements because they had been illegally obtained after defendant invoked his right to counsel through the request he made to his mother; and 2) properly admitted defendant's second statement because it resulted from defendant's initiation of contact with the police, which was otherwise "proper and admissible," and was not tainted by the earlier illegally-obtained statement. Id. at 69-70. Echoing the trial court's findings, the Court noted the defendant was a "forty-one-year-old male with over twenty arrests in his adult life[,]" that "[h]e had familiarity with the workings of the criminal justice system[,]" that he was not questioned again after the first illegal interrogation ceased, that he was prudently re-advised of his Miranda rights before being questioned again, and that he "was made as comfortable as possible and given pain medication while . . . in police custody." Id. at 65-66. "Given the totality of circumstances surrounding the second interrogation and confession," the Court found "defendant's waiver was knowing, intelligent, and voluntary." Id. at 66. The Court then went on to consider whether the second statement "was sufficiently independent of and not tainted by the [earlier] statement." Id. at 67.

In this case, defendant made no statement during Pulman's initial interrogation session. Nonetheless, we must employ a similar analysis, i.e., we must consider whether defendant's subsequent statement to Pulman was so tainted by the officer's impermissible interrogation--even though it did not immediately yield any information--so as to require suppression of the later statement. Here, too, Chew's guidance informs our review.

The Court noted that consideration of the issue of taint involves "two alternative inquiries[.]" Id. at 67 (citing Hartley, supra, 103 N.J. at 279). "The first inquiry questions whether 'the second statement was so inextricably entwined with the first interrogation procedure as to be part of that same procedure.'" Ibid. (quoting Hartley, supra, 103 N.J. at 279). "Under the second 'taint' inquiry, the State must demonstrate that the second statement 'was not the product of the first . . . or that the 'taint' of the first statement was attenuated.'" Id. at 68 (quoting Hartley, supra, 103 N.J. at 283).

Factors relevant to this determination include the time between confessions, any intervening circumstances, whether there was a change in place, whether defendant received an adequate warning of his rights, whether the defendant initiated the second confession, the effect of his having previously made a confession, and the purpose and flagrancy of police misconduct.

[Hartley, supra, 103 N.J. at 283.]

State v. Johnson, 120 N.J. 263, 286-87 (1990); and see State v. O'Neill, 193 N.J. 148, 180-81 (2007) (requiring consideration of similar factors to determine whether post-warning statements are admissible if police use a two-step--question first, warn later--interrogation process).

Noting five hours elapsed between the first statement taken in violation of the defendant's request for counsel and the second statement, the Chew Court affirmed the trial judge's conclusion that "[t]his provided a sufficient break in time between the statements so that they were not part of the same procedure or process of interrogation." Chew, supra, 150 N.J. at 67-68 (citing Hartley, supra, 103 N.J. at 279). The Court went on to determine "that the cat had not been let out of the bag" by the defendant's first statement, and that "intervening circumstances"--the defendant was charged with murder, other witnesses had incriminated him, and he had been moved to another location--had occurred. Id. at 69. Lastly, although the prior interrogation violated his request for counsel, the police had not acted "purposefully or flagrantly" in that regard, and did not question him again thereafter. Ibid. Quoting the trial judge, the Court noted that "[h]ad [the] defendant not requested him, [the detective] would never have spoken to [the] defendant again[.]" Ibid.

III.

We now apply this analytic framework to the facts presented in this case. Since the State concedes Pulman's initial comments were the functional equivalent of impermissible interrogation, we must determine whether that impropriety tainted the subsequent interrogation.

First, we conclude that "the process that produced the second statement was [not] so inextricably entwined with the first interrogation procedure as to be part of that same procedure." Hartley, supra, 103 N.J. at 279. Although the judge did not make specific findings, it would appear that several hours passed between Pulman's comments and defendant's subsequent request to speak to the detective. Pulman said he first spoke to defendant between 5:00 a.m. and 6:00 a.m., and the tape reveals that the entire first episode lasted approximately three minutes. Pulman then drove thirty minutes to the crime scene, did further investigation there, proceeded to defendant's home, spoke to his mother, and drove back to the barracks. He estimated this took "a few hours." After that, Pulman prepared the complaints, contacted the judge to set bail, and served defendant with copies. Another twenty to thirty minutes elapsed before defendant asked to see the detective. The record does not suggest that Pulman delayed responding to that request, and the second statement began at 10:26 a.m. and ended shortly thereafter. Thus, it would appear that at least four, and perhaps as much as five hours, elapsed between defendant's invocation of his right to counsel, and the re-administration of his Miranda rights.

We would view this as "a sufficient break in time between the statements so that they were not part of the same procedure or process of interrogation." Chew, supra, 150 N.J. at 67-68. We reach this conclusion based not only upon the amount of time that passed, but also upon the lack of any contact whatsoever between defendant and any law enforcement officer in the interim. Thus, the situation in this case is entirely unlike that presented in Hartley, where the second interrogation was "part and parcel" of the first, having followed an unbroken chain of contacts with law enforcement and immediately after the impermissible first interrogation. Hartley, supra, 103 N.J. at 280; see State v. Mallon, 288 N.J. Super. 139, 143-44 (App. Div.), certif. denied, 146 N.J. 497 (1996) (where one-hour elapsed between two sessions, during which police engaged in conversation with defendant about subjects other than the crime).

We must next apply the factors set forth in Hartley, supra, 103 N.J. at 283, and determine whether the first session with Pulman nevertheless tainted the second session. Chew, supra, 150 N.J. at 68. We have already noted the significant lapse of time between the two events. Second, since defendant did not respond to Pulman's improper interrogation, the "cat [was not let] out of the bag" before the second session began. Hartley, supra, 103 N.J. at 282 (citing United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 1398, 91 L. Ed. 1654, 1660 (1947) (finding that "the psychological and practical disadvantages of having confessed" underlie taint analysis)). Third, there was only one, though very important, intervening circumstance between the two sessions, i.e., defendant was served with copies of the formal complaints and advised of his bail. See Chew, supra, 150 N.J. at 46. Twenty to thirty minutes later, defendant asked to speak to Pulman, and there is no dispute that defendant alone initiated the subsequent contact with the detective. See Fuller, supra, 118 N.J. at 83 (noting the distinction between police-initiated and defendant-initiated questioning after administration of Miranda warnings).

We concede that Pulman's initial conduct was intentional, and motivated by a desire to have defendant identify his co-defendant and, in so doing, obviously incriminate himself. Such conduct is not to be condoned and, if not "flagrant[,]" was certainly "purposeful." Chew, supra, 150 N.J. at 69. However, it failed to elicit any response from defendant, and after it occurred, significant time passed, there was no further contact with law enforcement personnel, defendant was kept comfortable, and he initiated subsequent contact with Pulman. Consideration of all relevant factors leads us to conclude that the second procedure was not impermissibly tainted by the first.

We lastly consider whether defendant "knowingly, voluntarily, and intelligently waived his rights before speaking" to Pulman a second time. O'Neill, supra, 193 N.J. at 180. "At the root of the inquiry is whether a suspect's will has been overborne by police conduct." State v. Presha, 163 N.J. 304, 313 (2000). We decide the issue by examining "the totality of circumstances surrounding the arrest and interrogation, including such factors as 'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)). "Another circumstance that may be considered is the defendant's prior experience with the criminal justice system." O'Neill, supra, 193 N.J. at 181.

Here, the trial judge made a number of factual findings regarding these factors as they pertained to the second interrogation procedure. Nevertheless, he reached a conclusion that Pulman's prior comments "continued to linger and fester in the mind of defendant while he waited in the holding cell," and were "[t]he motivating force behind [] defendant's change of position[.]" In this regard, we find that objective consideration of the totality of circumstances surrounding the second interrogation procedure leads to the conclusion that defendant's waiver was freely, voluntarily and intelligently given.

The record does not reveal defendant's age or educational background. However, the judge found that he had no "difficulties understanding the questions" he was asked. Defendant's prior criminal record was not testified to in detail, however, he had some prior involvement with the criminal justice system because the judge found that he knew Pulman, had been interrogated by him before, and had given him a statement in the past. The judge found that defendant had been Mirandized, though in a "perfunctory" fashion the second time, and that he understood his rights when given to him both times. Further, the judge found that "[d]uring the second phase of the interview, defendant never asked to stop the questioning[,] . . . did not renew his request to speak to his attorney[,]" was not threatened, promised anything, or struck. He noted that Pulman "was not overbearing in his questioning during the second phase," but rather maintained a "conversational" tone. There is no evidence that defendant was overwrought when he asked to speak to Pulman, and in his statement, defendant acknowledged that he was "treated alright" by the detectives. As we have already noted, defendant had no contact with law enforcement during the four to five hours between the two episodes and so was not subjected in any way to repeated or prolonged attempts at interrogation.

We recognize that our review of the trial judge's decision requires us to defer "to the [judge's] factual findings . . . so long as they are 'supported by adequate, substantial and credible evidence' in the record." State v. Burno-Taylor, 400 N.J. Super. 581, 605 (App. Div. 2008) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). No such deference is required, however, to the legal conclusions that flow from those findings. State v. Brown, 118 N.J. 595, 604 (1990); State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). We conclude that based upon the factual findings expressly made by the judge, and those otherwise available from the record, defendant voluntarily waived his rights and provided his statement to Pulman.

Reversed.

Pyfer was charged in counts seven through fourteen of the same indictment.

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 have been provided with both the audio recording of the interviews and the transcripts.

The Miranda cards were not introduced at trial and Pulman explained that they could not be found. However, it is apparently undisputed that defendant in fact executed the forms on two separate occasions during the interrogation sessions.

The Court later notes this occurred at 12:50 p.m. Chew, supra, 150 N.J. at 64.

Defendant did not testify at the hearing, and there are no explicit factual findings made by the judge to support this conclusion. We can only assume that he did so based upon the nature of Pulman's comments.

(continued)

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A-1058-08T4

March 30, 2009