STATE OF NEW JERSEY IN THE INTEREST OF T.R.B

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2896-07T42896-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF T.R.B.

_________________________

 

Submitted March 10, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-534-08A.

Yvonne Smith Segars, Public Defender, attorney for appellant, T.R.B. (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent, State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The juvenile T.R.B. appeals from the January 14, 2008 final adjudication of delinquency entered in the Family Part, which resulted in his placement on probation for one year, a $2000 fine and a six-month suspension of his driver's license; T.R.B. was found in violation of N.J.S.A. 2C:33-3 for creating a false public alarm.

On appeal, T.R.B. argues that (1) the trial judge erred in denying his motion to suppress statements he made to police officers, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct., 1602 16 L. Ed 2d, 694 (1966); and (2) the verdict was against the weight of the evidence. We concur with T.R.B.'s first contention, and accordingly, reverse the final adjudication. Therefore, we need not reach his second argument.

The pertinent facts may be summarized as follows. On August 7, 2007, Officers Steven Keller and Andrew Micalizzi of the Middletown Township Police Department responded to a residence in Port Monmouth in response to a report from the Rahway Police Department that a suicide hotline in the Midwest had received a call from individuals who had stated that they wanted to shoot themselves. That call had been traced to a cell phone which, in turn, was traced to the Port Monmouth address. The Rahway Police Department gave the Middletown Police Department T.R.B.'s name as the owner of the cell phone.

When Keller and Micalizzi arrived at the residence, Keller had his dispatch officer call the occupant, Mrs. N. to advise her to come to the front door, because Keller was concerned that the caller may have had a gun. When Mrs. N. opened the door, Keller asked her if "T." was at home and she stated that he was not. Keller explained why he was there, and Mrs. N. became very upset at hearing that T.R.B. had threatened to shoot himself; she is T.R.B.'s grandmother.

With the grandmother's agreement, Keller put out a missing persons report for T.R.B. He and Micalizzi then left the grandmother's residence to search for T.R.B. at locations where Mrs. N. said he might be found. Before leaving, however, Keller advised Mrs. N. that if T.R.B. returned, she was to contact the police without T.R.B.'s knowledge, because "in the event that [T.R.B.] did have a gun and was going to do it, it could complicate the situation if he knew prior that [the police] were going to be arriving and what [they] were going to be looking for."

In response to the missing persons report issued by Keller, at least ten police officers became involved in the search for T.R.B. that evening. At approximately 8:30 p.m., Keller was advised that Mrs. N. had contacted police headquarters to report that T.R.B. had returned home, and Keller and Micalizzi went back to the residence to speak with T.R.B. Initially, the two officers spoke to T.R.B. in the living room with his grandmother present.

Keller asked T.R.B. if he intended to hurt or kill himself, and he responded that he did not. At that point, Keller stated that his "main goal was to make sure that this young man didn't want to hurt himself."

When T.R.B. appeared to become uncomfortable talking in front of his grandmother, she offered to leave. Keller advised her that she did not have to leave and that he did not normally speak to a juvenile outside the presence of the guardian; however, Mrs. N. left the living room at that point.

In the following colloquy with the prosecutor, Keller described what transpired next:

Q At any point were you accusatory?

A Never.

Q Now getting into the specifics of what you were asking him. What did he initially say to you when you asked him if he wanted to kill himself?

A He stated no.

Q What . . . if anything did he say when you confronted him with the accusation a crank call was made from his phone to a suicide hotline?

A He said he didn't have his phone the whole time, that one of his friends must have done it. He said that he was at the beach with friends.

Q Do you know what beach he said he was at?

A I believe he said Sandy Hook, but I don't have a recollection of that.

Q Did there come a time where you actually looked at his cell phone?

A Yes, I did.

Q Why did you do that?

A Just to confirm whether [the] suicide hotline was called from that phone, to determine if I had a young man who was thinking of hurting himself, or killing himself, now with the information that it's possibly one of his friends, I wanted to locate that individual to make sure that they couldn't hurt themselves or, God forbid, shoot themselves.

Q And what did you see when you looked at his phone?

A There were calls placed to information twice, two 411 calls. The only other calls on the phone that were listed on . . . the previously made calls, every other one of them had a name. [K.C.] -- like if you have a cell phone and a phone book, rather than having the number, you can put home for your home number, and it would just say home. It wouldn't actually give you a phone number.

Q Were you able to determine when those 411 calls were placed?

A They were placed that evening.

Q Evening?

A I'm sorry. That afternoon. I didn't record the actual time, no.

THE COURT: There were two 411 calls?

THE WITNESS: Two 411 calls.

[PROSECUTOR]: Where was [T.R.B.]'s grandmother . . . when you asked to look at the phone?

A She was still present, I believe, at this point.

Q Now you said that at one point [the grandmother] left the room, correct?

A Correct.

Q Where did she go?

A I believe she went upstairs, but . . . the layout of the house is when you walk in[,] the living room . . . flows right into, I believe, like a dining room area, and the stairs were off to the right. I believe, at the time, she was off to . . . the right, toward the stairs, when she voluntarily left.

Q. And when she voluntarily left, what did [T.R.B.] say to you?

A. He said that he was with [K.C.], at [D.]'s house, and [K.C.] had asked him to use the cell phone so that he could call his mother, and . . . then [T.R.B.] originally said that he had left the room, and when he came back [K.C.] was laughing.

. . . .

Q. Okay. Now you said that the juvenile told you that he gave his phone to [K.C.], and [K.C.] left the room?

A No, [T.R.B.] left the room.

Q I'm sorry. [T.R.B.] left the room.

A Correct.

Q And [K.C.] eventually came back and was laughing?

A What happened was [T.R.B.] -- the way it was described to me, [K.C.] said can I use your phone to call my mother. [T.R.B.] agreed, handed [K.C.] the phone, and this is originally the way the story was given to me was that [T.R.B.] left the room. A few moments later, [T.R.B.] came back in the room, and [K.C.] had hung the phone up, and was laughing. So [T.R.B.] was the one who had left the room and came back.

Q Did he say why [K.C.] was laughing?

A He said he went into that and [K.C.] -- I believe [K.C.] had made a phone -- said that he had called the suicide hotline.

After this conversation with T.R.B., Keller and Micalizzi set out to search for K.C. Apparently K.C. learned that the police officers were looking for him, and he came to police headquarters at approximately 10:15 p.m. where Keller interviewed him. K.C. told Keller that T.R.B. "had actually made the phone call to the suicide hotline, and he began to laugh and wasn't able to say anything, and . . . [T.R.B.] handed [K.C.] the phone, and that's when [K.C.] made the statement that . . . [he] want[ed] to shoot [him]self . . . ."

Keller thereupon took K.C. into custody. At the same time, Keller called Micalizzi and advised him to take T.R.B. into custody.

Keller acknowledged that "[a]t no time during the questioning of [T.R.B.] did [he] Mirandize him[,]" and confirmed that T.R.B. "voluntarily hand[ed] his phone over to [him.]" Keller testified that when he "confronted [T.R.B.] with the fact that there w[ere] two 411 calls" on his cell phone, "that[] [was] when the story changed . . . to he was actually in the room with [K.C.], and he didn't leave the room. . . . [A]nd he heard [K.C.] say that he was joking around, told him he was going to shoot himself . . . ."

Micalizzi testified that he was present in the living room of Mrs. N.'s residence during the entire time Keller interviewed T.R.B. Micalizzi further testified that Keller later contacted him after speaking with K.C. and told him to go to Mrs. N.'s residence and place T.R.B. under arrest for creating a false public alarm.

In denying T.R.B.'s motion to suppress his statements to Keller, the trial judge found:

Officer Keller indicated that his intent was . . . securing . . . the safety of the juvenile in this case. There were a large number of officers involved in trying to find the juvenile out of concern for his safety, and also certainly to have a concern for the presence of a gun being involved.

So the [c]ourt has to look at the totality of the circumstances here. . . . [T]he questioning was for a short period of time. It was not in a coercive setting. It was in the juvenile's living room. Part of the time, the grandmother was present, but then she . . . left the room to give the juvenile a chance to speak to the officers. She was told she didn't have to leave.

There was . . . nothing to indicate that the juvenile . . . was not free to leave. . . . [T]he tone of the officer was not accusatory, and the motives, I find, were to ascertain the safety of the juvenile in this case. Obviously, hearing that someone had called threatening suicide, there was concern in the officers.

The juvenile was not . . . restrained, or told he could not leave the room, or . . . that his grandmother had to leave the room. . . .

Thus, after looking at everything in toto, and taking into account the entire setting here, I find that this was not a custodial interrogation, and there w[ere] no significant restraints on this juvenile's liberty, and, thus, that the statements that he made will be admissible.

Based upon this record, we concur with T.R.B. that the trial judge erred in denying his motion to suppress his statements to Keller. Although Keller's initial questioning of T.R.B. was prompted by his concern for the juvenile's wellbeing, after T.R.B. denied wanting to kill himself Keller then "confronted him with the accusation [that] a crank call was made from his phone to a suicide hotline[,]" to which T.R.B. responded that "[he] didn't have his phone the whole time, that one of his friends must have done it."

This change in focus occurred during Keller's ongoing interrogation of T.R.B. in the living room of his grandmother's house. The change in the officer's mindset is clear from his responses to the questions put to him by the prosecutor.

At the point when Keller realized that T.R.B. was not a likely suicide, but rather was a possible participant in a criminal offense, the officer's questioning took on a "potentially inquisitorial nature . . . ." State v. P.Z., 152 N.J. 86, 102 (1997). We concur with T.R.B.'s assertion that, at that point, he was in "custody" within the purview of Miranda protections. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Id. at 103. We have recognized that "[c]ustody in the Miranda sense does not necessitate a formal arrest or that the questioning occur in a police station. Custody may occur in a suspect's home . . . ." State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988). See Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d 707.

The circumstances surrounding T.R.B.'s interview demonstrate that, at some point, Keller's questioning became accusatory in nature, and the answers T.R.B. provided to the ensuing inquiries clearly implicated the juvenile in the prank call to the suicide hotline. In addition, T.R.B. gave his cell phone to Keller at the officer's request. Review of some of the numbers stored in that cell phone further enhanced Keller's belief that T.R.B., along with K.C., had been involved in making the crank call. Moreover, a second police officer, Micalizzi, was present throughout Keller's interview with T.R.B., thereby likely enhancing "the inherent psychological pressure" on T.R.B. P.Z., supra, 152 N.J. at 102.

Therefore, we conclude that T.R.B. was entitled to the protections afforded by Miranda:

[W]ithout proper safeguards[,] the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights . . . .

. . . .

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system -- that he is not in the presence of persons acting solely in his interest.

[Miranda, supra, 384 U.S. at 467-69, 86 S. Ct. at 1624-25, 16 L. Ed. 2d at 719-21.]

Such protection is particularly imperative where, as here, the police officer initially was "acting solely in [T.R.B.'s] interest[,]" but then turned the interview into "a phase of the adversary system . . . ." Ibid.

Because we conclude that T.R.B. was entitled to be given the Miranda warnings in light of the "potentially inquisitorial nature of police questioning and the inherent psychological pressure on [him,]" P.Z., supra, 152 N.J. at 102, we reverse the adjudication of delinquency and remand for further proceedings in conformance with this opinion.

 
Reversed.

(continued)

(continued)

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A-2896-07T4

RECORD IMPOUNDED

July 30, 2009