STATE OF NEW JERSEY v. DEMETRIUS M DIAZ-BRIDGES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5460-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DEMETRIUS M. DIAZ-BRIDGES,

Defendant-Respondent.

_____________________________

September 21, 2010

 

Argued January 20, 2010 - Decided

 

Before Judges Fuentes, Gilroy and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-08-1014.

 

John K. McNamara, Jr., Assistant County Prosecutor, argued the cause for appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Joseph Connor, Jr., Deputy First Assistant Prosecutor, on the brief).

 

JosephE. Krakora, Assistant Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Krakora, on the brief).

 

PER CURIAM

On January 30, 2008, Elizabeth O'Brien was murdered in her home in Jefferson Township. On May 2, 2008, defendant Demetrius M. Diaz-Bridges confessed to the murder. In July 2008, a Morris County Grand Jury charged defendant with 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:15-1a(1) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count five). On May 8 and 27, 2009, the trial court conducted an N.J.R.E. 104(c) hearing concerning the admissibility of various statements defendant made to the police, including his May 2, 2008 confession. On June 8, 2009, the court entered an order supported by a written opinion of June 3, 2009, later amended by a supplemental opinion of June 8, 2009, that suppressed defendant's confession. On July 9, 2009, we granted the State's motion for leave to appeal. We affirm in part, and reverse in part.

I.

On January 31, 2008, at approximately 2:30 a.m., after learning that defendant, then nineteen years old, was an acquaintance of the victim's two teenage sons and may have been the last person to see the victim alive, detectives from the Morris County Prosecutor's Office and the Jefferson Township Police Department proceeded to a residence where defendant was staying which was located near the victim's home. The detectives requested defendant accompany them to the Jefferson Township Police Headquarters to discuss the murder. Defendant agreed. Upon arrival at police headquarters, the detectives gave defendant his Miranda1 warnings. Defendant acknowledged his rights, waived them, and responded to the detectives' questions. After defendant submitted to a polygraph examination, the police took defendant's DNA sample, and his fingerprints. Defendant also permitted the police to search his room where he was then residing. Approximately two hours after defendant left police headquarters, the detectives requested that he return for additional questioning. Defendant complied; and before questioning, the police again advised him of his Miranda rights. Defendant did not provide the police with any inculpatory statements during the two interrogations.

During the next several months, the police developed evidence that led them to believe defendant had committed the murder. On ascertaining that defendant had moved to Raleigh, North Carolina, to live with his mother and stepfather, Detective Evelyn Tasoulas of the Morris County Prosecutor's Office telephoned defendant's stepfather who, in turn, had defendant telephone the detective to arrange a meeting with the New Jersey detectives in Raleigh.

On May 1, 2008, Tasoulas, and then Sergeant Stephen Wilson and Detective Supervisor Don Dangler of the Morris County Prosecutor's Office, Detective Mike Curullo of the Morris County Sheriff's Office, and Detective James Caruso of the Jefferson Police Department drove to North Carolina to meet with defendant. On May 2, 2008, pursuant to discussions with defendant and his stepfather, the detectives met defendant in a parking lot of a Dunkin' Donuts store in Raleigh, where defendant agreed to accompany the detectives to the Raleigh Police Department Headquarters for questioning. En route to the police station, the police did not question defendant concerning the Jefferson Township murder, nor did defendant volunteer any inculpatory statements concerning the murder. On arrival at the police station, the detectives placed defendant in a room equipped with video and audio-recording capabilities where Detectives Dangler, Wilson and Caruso interrogated him. The entire interrogation was video recorded.2

At the commencement of the interrogation, the detectives reminded defendant that he had outstanding warrants3 in New Jersey for matters unrelated to the murder, and that he had the right to have a public defender present for questioning concerning those unresolved matters. The detectives also informed defendant that they wanted to question him about the murder. The detectives gave defendant his Miranda warnings at 11:25 a.m.; defendant waived his Miranda rights and began to answer the detectives' questions concerning the murder.

During the first three hours of the interrogation, defendant denied committing the murder, telling the detectives of his alleged activities on the day of the homicide. Indeed, defendant laid blame for the murder at the feet of the victim's son, Tyler O'Brien, asserting that Tyler had confessed committing the murder to him. At approximately three hours and eleven minutes into the interrogation, Wilson told defendant that he believed defendant was not telling them the truth. For the next seventeen minutes, the detectives attempted to persuade defendant to reveal information they believed he was holding back. In so doing, Wilson told defendant "You know the truth comes out. You know, sooner or later it comes out of the darkness and into the light. And, now's the time. Now is the time. Okay? It's gonna come out. You still want to hold onto it?"

At three hours and twenty-eight minutes, Wilson told defendant that he believed defendant murdered O'Brien and asked defendant why he had done so. Defendant again denied involvement in the crime. At this point, defendant began to sniffle and cry.

For approximately the next fifteen minutes, the detectives repeatedly told defendant that they believed he committed the murder and attempted to persuade him to tell them what had happened. Despite the detectives' continued insistence that defendant tell them what happened because it would make him feel better, because the truth will eventually come out, and for the sake of his daughter, defendant continued to deny committing the murder. At three hours and forty-two minutes into the interrogation, after being asked again, "What happened that day?," and with Detectives Caruso and Wilson consoling defendant by placing their hands on his shoulder, defendant responded to the inquiry by asking: "Can I just call my mom first?" After asking that question, defendant continued to cry.

The detectives continued in their attempts to get defendant to disclose what occurred on the night of the murder. They simultaneously consoled defendant by speaking to him in soft voices, patting him on his back, and rubbing his shoulders. At approximately three hours and fifty-one minutes, defendant regained his composure and confessed to the murder.

Defendant told the detectives that the incident began as an argument between himself and O'Brien with the victim becoming angry because defendant did not have any drugs to give her. He described how he murdered O'Brien by pushing her away from him, causing her to fall and strike her head on a coffee table; by hitting the back of her head three or four times with an exercise weight; and by hiding her body in a closet. He also described his attempt to cover up the events of the murder. The confession occurred over approximately an hour and thirty minutes and ended at approximately five hours and three minutes elapsed time into the interrogation.

After confessing, the detectives asked defendant if he wanted a tissue. Defendant again responded by stating that he wanted to talk to his mother. Wilson informed defendant that they would arrange a telephone call, but wanted defendant to first relax and gather his thoughts, with the intent of taking a more formal statement from defendant. The detectives next took a thirty-five minute break from the interrogation. During the break, defendant again asked if he could talk to his mother, and Dangler replied that they would arrange for the telephone call. After the break, at approximately six hours and forty-three minutes, the detectives gave defendant fresh Miranda warnings and began to take the formal statement before allowing defendant to make the telephone call. Approximately ten minutes later, defendant told the detectives that he felt sick. The detectives interrupted the interrogation for defendant to use the bathroom.

The interrogation resumed approximately five minutes later. Again defendant asked if he could talk to his mother, and, although the detectives assured him that he would be able to, they did not immediately arrange for defendant to telephone his mother. In fact, during the next forty-eight minutes or so, defendant indicated to the detectives that he wanted to talk to his mother eight more times. Although the detectives did not then acquiesce in defendant telephoning his mother, defendant told the detectives that he wanted to continue talking to them. Indeed, Wilson asked defendant: "Do you, do you still wish to talk to us?" In response, defendant told Wilson: "Yes[.] I have no problem talking to you[;] I just want to talk to my mom. That's it." Defendant then told the detectives that he wanted to tell his mother that he had murdered O'Brien before she heard it from anyone else: "I'd rather talk to her before you put it out because you understand? She's not gonna stay around. She's not, she's not. I want to talk to her before she finds out."

At six hours, four minutes, and fifty seconds elapsed time, Caruso told defendant that the formal statement would take approximately another half hour and that defendant would be finished. Defendant told Caruso: "See[,] I'm not gonna take that long on the phone, only like 2 minutes. A half hour going back through all this is gonna [] rip me apart inside." Wilson responded: "So, if you talked, so you're saying that you want to talk to your mom, okay? Look at me." At six hours, five minutes, and thirty-five seconds, defendant responded: "I want to hear her say it's gonna be okay. And (inaudible) I don't have nobody. I have nobody. And this thing is gonna do nothing but make it worse. I just want to hear her say it's gonna be all right, that's it." The detectives then took a break to allow defendant "to relax." On resuming the interrogation approximately fifteen minutes later, defendant again requested to talk to his mother. At six hours and thirty-seven minutes elapsed time, in attempting to get defendant to answer his questions, Caruso told defendant: "We don't have, we're almost done. We don't have that many questions to ask you, just like two or three questions." Defendant replied: "I can't answer no more questions right now, man." Wilson asked defendant if he wanted to take another break and if he still wished to talk to them. Defendant responded: I don't have any problem talking, I just need a minute, I just want to . . . talk to my mom."

Rather than allowing defendant to talk to his mother, the detectives offered him food and drink. At this point in the interrogation, six hours, thirty-nine minutes and twenty-four seconds elapsed time, defendant told the detectives: "I can't do this shit, man. I just want to go home. (inaudible) I'm so sorry, man."

At approximately six hours and forty-eight minutes, the detectives allowed defendant to telephone his mother.

Ma. Nothing. I just wanted to hear your voice. Yeah, but, no, I'm still down here. I don't . . . Ma, I messed up, Ma. Yeah. I don't, I don't . . . I messed up, mom. I don't, I don't know. Help me. I'm so hurt. Oh my God. I messed up bad, Ma. Yeah. I'm not feeling like . . . I'm so . . . sick, man, I'm . . . throwing up. This is not me. And what, man, what? It don't even matter. You cannot do. I'm still down here. I'm at the police station down here but you can't do shit. I just wanted to talk to mommy.

 

No. I'm in the Raleigh Police Station. Yeah. Cause they were questioning me before we go back. I just wanted you to understand that this is not good. It's not . . . this is not . . . this whole shit is real bad. It's so bad. Really bad. This is not good, man. I'm so . . . I can't drink nothing, you know. I can't eat. [D]on't even got no . . . appetite. I don't.

 

They're questioning me cause (inaudible) because they got to go by, I guess, the rules down here too. Yeah. Put mommy on the phone. Mom, I love you. That don't matter though. It don't matter, it don't, no, it . . . Yeah, I don't know. Yeah. It's nothing, all right man. Yo don't . . . yeah, you know. I don't know but this is really not looking good at all. Can you do me a favor and call . . . and call Tasha and just tell her I'm so sorry. This is not working out like, nothing like I, it's nothing. Nothing . . . .

 

After defendant completed his telephone call, the detectives resumed questioning him. The detectives continued asking about the murder, and defendant indicated that he was having difficulty reliving the experience. However, by seven hours and thirty-five minutes elapsed time, defendant stopped crying, regained his composure, and began to talk about the murder in detail for a second time. At approximately seven hours and forty-eight minutes elapsed time, the detectives took another break for approximately one hour, during which they provided defendant with food and drink. After the break, defendant again confessed to the murder. He spoke clearly, gave detailed answers to the detectives' questions, and even re-enacted the incident. After nine hours and fifty-eight minutes, the interrogation ended.

II.

At the N.J.R.E. 104(c) hearing, the State presented testimony from Detective Anthony Mauceri of the Morris County Prosecutor's Office, along with testimony from Detectives Tasoulas and Wilson. Mauceri testified to the events surrounding the interrogations of defendant that occurred on January 31, 2008. Mauceri also identified two DVDs that had been made of those recorded interrogations. Tasoulas testified to her arranging for the New Jersey detectives to travel to North Carolina to interrogate defendant.

Wilson testified to the May 2, 2008 interrogation that occurred in Raleigh, North Carolina. Wilson identified the DVD made of the videotape recording, stating that it was "a fair and accurate depiction" of the events that occurred on May 2, 2008, during the interrogation at the Raleigh police department. According to Wilson, the initial first three and one-half hours were conversational in nature, that is, question and answer; however, it became "a little bit more confrontational" after that time because the detectives "started to address some of the inconsistencies and some of the gaps in [defendant's] story that he was telling [them]." In questioning whether there came a time in the interrogation when defendant asked to make a phone call to his mother, Wilson answered yes. When asked whether he believed defendant was invoking his right to remain silent, Wilson answered in the negative.

Wilson described defendant's demeanor when he confessed to the murder as "very emotional at times, crying, and looked as though he might become physically ill." Lastly, Wilson informed the court that the detectives provided defendant with breaks during interrogation, with food and drink and never threatened defendant. At the conclusion of Wilson's testimony, the State introduced the DVD, and the court reserved decision.

Following the hearing, the trial court issued a written opinion, determining that the statements defendant made to the police during the two January 31, 2008 interrogations were admissible. The court also determined that the first three hours and twenty-eight minutes of the May 2, 2008 video recorded interrogation, to shortly before defendant first requested to speak to his mother, was admissible.4 However, the court barred the balance of the videotape interrogation from evidence.

In so ruling, the court found that during the first portion of the interrogation, "the defendant is . . . calm and talkative and voluntarily answering all of the three detectives' repeated questions. There is little question but that he had voluntarily waived his rights, once again hoping to convince his interlocutors that he was innocent of the crime." However, as to the remainder of the videotaped interrogation, the court reasoned:

After [that point in the tape] Sergeant Wilson tells the defendant he knows that he committed the murder and all three detectives keep pressuring him, repeatedly telling him he has to talk to them. Fifteen minutes later . . . the defendant, now crying and having said nothing for about ten minutes despite relentless prodding by the three officers, asks to call his mother. The detectives deny the request. . . . The defendant then refuses to answer any of the continuing questions of the three detectives and is crying and clearly in great distress.

. . . .

In this case, given the defendant's silence and weeping before he asks to call his mother, his moaning and silence for some time after this request is refused, before he finally capitulates and admits his guilt, it should have been clear to the detectives that he might well have wanted to exercise his right to remain silent. . . .

 

 

Instead of treating his request to call his mother as an attempt to exercise his right to stop the questioning as guaranteed by Miranda, or at the very least determining from him if he really wanted to stop talking then, the detectives continue to pressure him to confess, telling him he had to talk to them. The resulting confession cannot be considered a product of the defendant's free will and may not be admitted as evidence against him.

 

[(citation omitted).]

 

On June 8, 2009, the trial court issued a supplemental opinion:

[The court] had made a factual error in [its] original opinion of June 3, 2009. On Page 5, [the court] indicated that Miranda warnings "were not re-administered to the defendant at any time," after defendant's original confession on May 2, 2008. In fact, Detective Wilson read the original form again to the defendant, directly after defendant had made a full confession. Defendant continued to cry, was sick to his stomach and repeatedly asked to speak to his mother, and again said that he can't answer any more questions. Finally, the detectives let him call his mother. Even afterwards, it is some time before the defendant reluctantly begins to answer some questions. The taint of the first statement was not attenuated by Detective Wilson's repeat of the Miranda warnings; the defendant never voluntarily waived his right to remain silent.

 

[(Internal references to the transcript of the May 2, 2008 interrogation and citation omitted.)]

 

III.

 

On appeal, the State argues the trial court erred in suppressing defendant's confession. The State contends that, although a request by a suspect to speak to a parent may in certain circumstances constitute an assertion of a right to remain silent, such was not the case here. The State asserts that defendant's continued cooperation with the police and his lack of hesitation to speak with them on multiple occasions, gave the detectives no reason to associate defendant's request to call his mother as an assertion of his right to terminate the interrogation and remain silent. The State also argues that the evidence presented at the suppression hearing does not support the trial court's finding that the police overbore defendant's will.

An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). On reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244).

When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interest of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" State v. Mann, ___ N.J. ___, ___ (2010) (slip op. at 16), (quoting Johnson, supra, 42 N.J. at 162). "A reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (internal citations omitted).

IV.

We first address the State's argument that the trial court erroneously determined that defendant's confession was involuntary.

The trial court found that a critical event occurred during the May 2, 2008 interrogation, after which defendant's free will had been overborne by the detectives' conduct. The court determined that this event occurred at three hours and twenty-eight minutes into the interrogation when Detective Wilson told defendant that he believed defendant had murdered O'Brien. The court concluded that statements given by defendant prior to that event were admissible, but any statements after that event were inadmissible. In reaching that conclusion, the court found that: 1) "[a]ll three detectives kept pressuring [defendant], repeatedly telling him he has to talk to them."; 2) defendant cried and did not say anything for about ten minutes "despite relentless prodding by the three officers"; 3) defendant was "clearly in great distress"; 4) defendant "clearly was mentally exhausted"; and 5) "defendant continued to cry, was sick to his stomach and repeatedly asked to speak to his mother, and again said that he can't answer any more questions."

The State argues that the trial court did not consider the totality of the circumstances surrounding the interrogation, and that the videotape of the interrogation does not support the court's "extreme findings" that defendant was suffering from "overwhelming exhaustion," "physical distress," and "relentless questioning," but rather shows a calm interrogation during which the detectives spoke to defendant in "measured tones and treated him courteously." We agree.

The Fifth Amendment to the United States Constitution and this State's common law afford defendants the right against self-incrimination. State v. Hartley, 103 N.J. 252, 260, 284-87 (1986); State v. Nyhammer, 197 N.J. 383, 399, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The federal constitutional right against self-incrimination has been made applicable to the States through the due process clause of the Fourteenth Amendment. Nyhammer, supra, 197 N.J. at 399-400 n.7. The right is now codified in our rules of evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503.

In situations of custodial interrogation, Miranda warnings are required as procedural safeguards to protect this Fifth Amendment privilege. Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. Prior to a custodial interrogation, the police must advise a suspect that:

[1] he has the right to remain silent, [2] that anything he says can be used against him in a court of law; [3] that he has a right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

 

[Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]

 

Additionally, a suspect must be advised that he or she can exercise those rights anytime during the interrogation. Ibid.

The Fifth Amendment privilege may be waived so long as the waiver is made knowingly, voluntarily and intelligently. Id. at 444, 86 S. Ct. 1612, 16 L. Ed. 2d at 707; Nyhammer, supra, 197 N.J. at 400-01; State v. Cook, 179 N.J. 533, 549 (2004). If a suspect waives his right to remain silent after the police properly advised him of his Miranda warnings, the police are free to interrogate the suspect. State v. Adams, 127 N.J. 438, 447-48 (1992). On a motion to suppress, "[t]he State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005).

As in Knight, "[t]he key question here is whether defendant's waiver of the privilege and resulting statements were made voluntary, as due process requires." Ibid. Relinquishment of a defendant's right to remain silent is voluntary when it is found to have been "the product of a free and deliberate choice rather than intimidation, coercion or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986). Although psychological coercion can lead to an involuntary confession, Cook, supra, 179 N.J. at 562, the "use of psychologically oriented interrogation techniques is not inherently coercive." Id. at 562-63. Nonetheless, "[c]onfessions are not voluntary if derived from very substantial psychological pressures that overbear the suspect's will." Id. at 563 (quotations omitted).

Determining whether a suspect's will has been overborne is fact sensitive. State v. Miller, 76 N.J. 392, 402 (1978). In considering the issue, the court must consider the entire circumstances surrounding the interrogation. Ibid. In so doing,

[a] court must look at . . . both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.

 

[Knight, supra, 183 N.J. at 462-63 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).]

 

Additionally, our Supreme Court has instructed trial courts to consider other relevant factors, including a suspect's prior encounters with law enforcement and the period of time between when the police gave a suspect his or her Miranda warnings and the confession. Id. at 463 (internal citations and quotations omitted).

Here, defendant was nineteen years of age, completed eleven years of school, and had prior experience with police interrogations. Although the May 2, 2008 interrogation lasted just shy of ten hours, there were several substantial breaks during the interrogation, and the detectives offered defendant food, drink, tissues, and use of the bathroom, all which defendant accepted at various times during the interrogation. There is no evidence that defendant was excessively tired, sleep deprived, or physically abused. Indeed, the interrogation took place during daylight hours.

The record reflects that after defendant was advised of his Miranda warnings, he conversed freely with the detectives during the first three hours and forty-two minutes, and after telephoning his mother, he not only re-described the events surrounding the murder, but also reenacted how he committed the murder. Although portions of the video recorded interrogation show defendant responding emotionally to Wilson's statement that Wilson believed defendant had committed the murder when defendant placed his head in his hands and on the table, and cried, we conclude that defendant's demeanor, statements, and actions that occurred after he spoke to his mother do not support the trial court's conclusion that defendant's will had been overborne by the "relentless" questioning of the detectives. Mann, supra, ___ N.J. at ___ (slip op. at 16). Rather, defendant's overall demeanor and actions are suggestive of an individual who committed a serious crime, kept it to himself, and was being asked for the first time to explain the facts surrounding the horrifying event. It is reasonable to expect defendant to have reacted emotionally. Cook, supra, 179 N.J. at 563. Emotional distress is a natural consequence of reliving a horrific crime. Ibid. Once defendant took the crime out from the shadows of his own conscience and brought it into the light of others by his confession to the detectives and his statement to his mother, defendant's subsequent re-confession and actions confirmed that his will had not been overborne.

V.

We now address the State's argument that the trial court erroneously suppressed defendant's May 2, 2008 videotaped confession because the detectives failed to treat defendant's requests to telephone his mother as an attempt to exercise his right to remain silent, or alternatively, failed to clarify what defendant meant when defendant asked to telephone his mother before continuing the interrogation. The State contends that defendant's requests to telephone his mother did not constitute an assertion of his right to remain silent, nor did the circumstances require the detectives to clarify what defendant meant when he asked to telephone his mother. Although we agree that defendant did not invoke his right to remain silent when he initially requested to talk to his mother, we conclude that defendant subsequently invoked that right during the interrogation, requiring the detectives to terminate the interrogation at that later time.

In accord with Miranda, even after an interrogation has commenced, a suspect may invoke his or her right to remain silent at any time during the interrogation. State v. Johnson, 120 N.J. 263, 281 (1990). That right need not be expressed "with the 'utmost of legal precision.'" Ibid. (quoting State v. Bey, 112 N.J. 45, 65 (1988)). Indeed, if a suspect "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 suspect indicates that he desires to remain silent, that right must be "'scrupulously honored.'" Johnson, supra, 120 N.J. at 282 (quoting Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975)). "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." Ibid. Moreover, after a previously warned suspect invokes his or her right to remain silent, "any inculpatory statement made in the absence of fresh [Miranda] warnings must be deemed to have been unconstitutionally and illegally obtained as a matter of law." Hartley, supra, 103 at 271.

Nonetheless, "'[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) (quoting Bey, supra, 112 N.J. at 136-37), overruled on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004); accord State v. Burno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008) (holding that "the police may continue their questioning so long as the person's words or conduct could not reasonably be viewed as invoking the right to remain silent"). However, if the police are not sure whether a suspect is asserting his or her right to remain silent, the police are required to cease the interrogation or ask such questions that are only "designed to clarify whether the suspect intended to invoke his right to remain silent." Johnson, supra, 120 N.J. at 283 (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988)); accord State v. Wright, 97 N.J. 113, 120 n.4 (1984)5.

Here, the trial court citing State v. Harvey, 121 N.J. 407 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991), determined that defendant's first request to speak to his mother at approximately three hours and forty-two minutes into the interrogation constituted an invocation of his right to remain silent, which the police did not "scrupulously honor." The court concluded that that request should have reasonably been viewed by the detectives as an assertion of his defendant's right to remain silent; and accordingly, the detectives were required to cease the interrogation, or to limit their questions solely to clarify the issue of what defendant meant by his request.

We conclude that the trial court mistakenly considered defendant's request to telephone his mother in isolation from the mosaic of the prior relationship developed between the detectives and defendant, and from other statements and conduct that defendant made and exhibited during the May 2, 2008 interrogation. We are satisfied the court's reliance on Harvey is misplaced and that the issue is controlled by State v. Brooks, 309 N.J. Super. 43 (App. Div. 1998), certif. denied, 156 N.J. 386 (1998) and State v. Roman, 382 N.J. Super. 44 (App. Div. 2005), appeal dism., 189 N.J. 420 (2007).

In Harvey, a woman was murdered on June 17, 1985. 121 N.J. at 411. The police arrested the defendant at approximately 7:30 a.m. on October 28, 1985. Id. at 415. On arrival at the police station, the police gave the defendant his Miranda warnings. Ibid. The police attempted to interrogate the defendant about the murder intermittently over three days. During that time, the police took breaks from the interrogation to allow the defendant to gather his thoughts and to talk to his mother, ibid. and either gave defendant additional Miranda warnings or reminded him of them. Id. at 415-17. However, defendant repeatedly expressed reluctance to speak to the police about the incident. Id. at 415-16.

On the third day at approximately 11:00 a.m., the defendant advised the police that "'he would tell [them] about the murder[,] but he first wanted to speak to his father.'" Id. at 417. The police ceased the interrogation and arranged for the defendant's father to be transported to jail to meet with the defendant. Ibid. The defendant spoke to his father for approximately fifteen minutes. Ibid. After the defendant concluded his conversation with his father at about 2:30 p.m., the police resumed the interrogation without giving the defendant new Miranda warnings. Ibid. Almost immediately into the resumed interrogation, the defendant confessed to the murder. Ibid.

Based on the facts surrounding the interrogation, the Court concluded that the defendant's request to "consult with a close family member," together with his prior refusal to answer questions about the murder for about three days, constituted an invocation of his right to remain silent. Id. at 419-20. Having found that the defendant had invoked his right to remain silent, the Court determined that the police were required under Hartley, supra, 103 N.J. at 256, to give the defendant fresh Miranda warnings before resuming the interrogation, and because they failed to do so, the confession was inadmissible.6 Id. at 420-21.

We subsequently had the occasion to consider whether a defendant's request to talk to a relative during an interrogation constituted an invocation of the defendant's right to remain silent. Brooks, supra, 309 N.J. Super. at 43; Roman, supra, 382 N.J. Super. at 44. In Brooks, the police requested the defendant to accompany them to police headquarters to discuss a murder that occurred the evening prior. Supra, 309 N.J. Super. at 50. During the ride to police headquarters, the police gave the defendant his Miranda warnings. Ibid. On arrival at police headquarters at approximately 7:00 p.m., the police gave defendant fresh Miranda warnings. Ibid. Although the defendant did not then admit committing the murder, he was calm, cooperative, and responsive during the interrogation. Ibid. Four hours later, the police drove the defendant to his home. Id. at 51.

On continuing the interrogation the next day, the police re-administered Miranda warnings to the defendant. Ibid. Although he again denied involvement in the murder, the defendant continued to be cooperative and responsive to the questions. Ibid. After the police pressed the defendant concerning the incident, the defendant asked if he could "'think about it for a while.'" The police took a break from the interrogation and offered the defendant food and drink. Ibid. When the interrogation continued, the defendant told one of the detectives that "'if he could have a phone call to his mother, he would then tell [the detective] the truth, he would then tell [the detective] what occurred.'" Id. at 52. The detective brought the defendant into another room where the defendant spoke to his mother in the presence of the detective. Ibid. Following the telephone conversation, the police resumed the interrogation, and defendant gave the police a detailed confession. Ibid.

In affirming the trial court's conclusion that the defendant's confession was voluntary, we distinguished Brooks from Harvey based on the entire circumstances surrounding the interrogation. Id. at 54-57. We found in Brooks that:

There was no significant break in the interrogation, he had never expressed an unwillingness to talk to the police, he had signed the waiver form, and he voluntarily told the officer that if he could speak with his mother he would tell them the whole story. He did not indicate he wanted his mother's advice, and indeed, during his short telephone conversation with her he merely advised her that he was in trouble and that he loved her.

 

[Id. at 56.]

 

In Roman, the police interrogated the defendant concerning the murder of one of his two seven-week-old twin boys, and his having caused serious injury to the second child. Supra, 382 N.J. Super. at 50-51. After receiving his Miranda warnings, the defendant waived his rights and spoke to the police. Id. at 51. The next day, the defendant went to police headquarters where the police continued the interrogation. Id. at 52. Before doing so, the police re-advised defendant of his Miranda warnings and, again, the defendant waived his Miranda rights, expressing his desire to speak to the police. Ibid.

After telling the police several different versions concerning the death of his son, one of the officers informed the defendant "that he was lying and that his other son was going to be placed for adoption." Id. at 53. The tension in the room increased, and the defendant told a detective that "he needed 'to talk to [his] parents; [he] want[ed] to talk to [his] father.'" Id. at 54. The detective, seeking to ascertain what the defendant meant by those remarks, asked the defendant "'do you want to tell your father first, and you're going to tell us?'" The defendant replied "'I want to talk to my father.'" Id. at 54. The detective left the room telling the defendant he was going to get his father for him. Ibid. After two or three minutes, the detective returned to the interrogation room where he found the defendant "sobbing and telling [another detective] that he was the murderer who killed his son." Ibid. The defendant later gave a tape-recorded confession. Id. at 55.

On appeal, in affirming the denial of defendant's motion to suppress his confession, like in Brooks, we considered defendant's request to talk to his father in "the full context in which [those words] were spoken." Id. at 64. We acknowledged that the defendant's request to talk to his parents was similar to the request in Harvey, id. at 65, but unlike Harvey, the defendant "never gave the police any indication that he wanted to stop talking," only that he wanted to "take a break from the interrogation to speak with his parents." Id. at 65. We concluded that the defendant's request to talk to his parents was not at face value a request to assert his right to remain silent and that the detective followed proper procedure by inquiring as to the reason for the request. Id. at 66. Accordingly, we determined that there was no need for the police to have provided defendant with a new set of Miranda warnings before defendant confessed. Id. at 67.

Here, defendant had fully cooperated with the detectives on January 31, 2008, by submitting himself to two video recorded interrogations, submitting to a polygraph examination, providing a DNA sample and fingerprints, and permitting the police to search his room in the house where he then resided. On May 1, 2008, after being informed by his stepfather that the detectives wanted to meet with him, defendant telephoned Detective Tasoulas and arranged to meet the New Jersey detectives the next day. On May 2, 2008, defendant voluntarily met with the New Jersey detectives in the Dunkin Donuts parking lot in Raleigh, and freely accompanied the detectives to the Raleigh Police Department for questioning.

On arrival, the police gave defendant his Miranda warnings, defendant acknowledged that he understood them and waived them. For approximately three hours and twenty-eight minutes of the interrogation, although defendant did not admit involvement in the murder, he was otherwise cooperative and responsive to the detectives' questions. Upon Detective Wilson informing defendant that he believed defendant had murdered O'Brien, defendant's demeanor changed to where he began to sniffle and cry. At three hours and forty-two minutes into the interrogation after being asked what happened on the day of the murder, defendant answered: "Can I just call my mom first?" Nine minutes later, defendant confessed to the murder.

We are satisfied that based on the detectives' relationship with defendant, including defendant's prior cooperation with them, that it was not reasonable for the detectives to have interpreted defendant's initial request at three hours and forty-two minutes into the interrogation to talk to his mother "first" as an invocation of defendant's right to remain silent. Burno-Taylor, supra, 400 N.J. Super. at 590; Roman, supra, 382 N.J. Super. at 66; Brooks, supra, 309 N.J. Super. at 54-57. By its own terms, defendant's request did not constitute an assertion of his right to remain silent. By using the word "first," defendant did not make talking to his mother an absolute condition in telling the detectives about the murder as in Harvey, supra, 121 N.J. at 419-20, but only expressed his desire that he wanted to talk with -- not seek advice from -- his mother before telling them what had occurred.

Defendant's continued intent to provide the detectives with a confession is confirmed by his subsequent statements that "I'd rather talk to [my mother] before you put it out . . . . I want to talk to her before she finds out." (Emphasis added). Additional confirmation is provided by the content of defendant's conversation with his mother wherein he did not seek any advice from her, but only informed her that he loved her, things were looking bad, and requested her to contact [his girlfriend] and tell her he was sorry. Because it was not reasonable for the detectives to interpret defendant's initial request to talk to his mother as invoking his right to remain silent, the detectives were not required to provide him with a fresh set of Miranda warnings before defendant confessed. Hartley, supra, 103 N.J. at 271; Roman, 382 N.J. Super. at 67.

Nonetheless, defendant did make several subsequent statements indicating that he wanted to remain silent, which even if ambiguous, the detectives were required to clarify before they continued their interrogation. After his initial oral confession at approximately six hours and five minutes, defendant, when asked if he wanted to talk to his mother, informed the detectives that: "I want to hear her say it's gonna be okay. And (inaudible) I don't have nobody. I have nobody. And this thing is gonna do nothing but make it worse. I just want to hear her say it's gonna be all right, that's it." One can reasonably construe that request that as an indication that defendant realized confessing to the murder was "gonna do nothing but make it worse," and he needed to talk to his mother to see if it was okay to continue with the interrogation. As such, the police were required to clarify what defendant meant before continuing the interrogation. Johnson, supra, 120 N.J. at 283.

Additionally, approximately thirty-four minutes later, defendant told the detectives: "I can't do this shit, man. I just want to go home." Upon making that emphatic statement, we are satisfied defendant invoked his right to remain silent. The police were required to honor that right and cease the interrogation. Id. at 282.

Accordingly, we affirm that part of the trial court's decision suppressing that part of defendant's May 2008 videotape interrogation from approximately six hours and five minutes elapsed time, when defendant made the aforesaid ambiguous statement that he wanted to talk to his mother, to the end of the interrogation. We reverse that part of the trial court's decision suppressing defendant's oral confession that occurred prior to six hours and five minutes into the interrogation.

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

2 The interrogation commenced at 11:25 a.m. and concluded nine hours and fifty-eight minutes later. The video equipment did not record the time of day throughout the interrogation, but did indicate the elapsed time of the videotape as the interrogation proceeded. Accordingly, unless otherwise specifically noted, time references of events during the interrogation refer to the elapsed time with the recorded interrogation commencing at 0.00.

3 Defendant had outstanding warrants for failing to appear at a pretrial intervention hearing, failing to comply with provisions of a community service program, and failing to appear for a violation of probation hearing.

4 The trial court mistakenly notes this time as 3:28 p.m.

5 Subsequent to the briefing and oral argument in this appeal, the United States Supreme Court decided Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). In Berghuis, the Supreme Court held that for a suspect to have invoked his federal constitutional right to remain silent, the suspect must do so "unambiguously," and that the police are not required to cease an interrogation or to ask questions to clarify an ambiguous act, omission, or statement. Id. at ___, 130 S. Ct. at 2259-60, 176 L. Ed 2d at 1110-11. Because a suspect in this State may invoke his or her right to remain silent pursuant to the federal constitution and this State's common law, Hartley, supra, 103 N.J. at 260, 284-87 and Nyhammer, supra, 197 N.J. at 399, we are satisfied that until this State's Supreme Court directs to the contrary, Berghuis does not relieve the police from their State obligation to cease interrogating a suspect when the suspect's words or conduct can reasonably be viewed as invoking the suspect's right to remain silent. Nor does Berghuis relieve the police of the obligation to clarify a suspect's ambiguous statement before continuing the interrogation.

6 In Martini, the Court clarified Harvey, indicating that it was not just the defendant's words that controlled, but rather it was the full context of the interrogation in which the words were spoken that was determinative. 131 N.J. at 231-32.