STATE OF NEW JERSEY v. LARRY PEPPERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6199-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY PEPPERS aka LAWRENCE BEYAH

aka AL FARIG aka AL MUHAMMAD aka

TARIQ MUHAMMAD aka GORDON TONY DABNEY,

Defendant-Appellant.

________________________________

April 29, 2011

Submitted: April 13, 2011 - Decided:

Before Judges Axelrad, Lihotz and

J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment NoS. 07-02-0456 and 07-02-0457.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor,attorney for respondent (Debra G. Simms, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Larry Peppers appeals from his conviction and sentence. We reverse and remand for a new trial.

Tried to a jury, defendant was acquitted of murder and found guilty of the lesser-included offense of first-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). He was also found guilty of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Immediately following this verdict, defendant was convicted by the same jury on another indictment for second-degree unlawful possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7(b).

The court granted the State's motion for an extended term of imprisonment. It merged defendant's conviction for possession of a weapon for an unlawful purpose with the manslaughter conviction and sentenced defendant to a twenty-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent five-year term on the conviction for unlawful possession of a handgun. It also sentenced defendant on the second indictment to a consecutive five-year custodial term, for all of which defendant was parole ineligible. See N.J.S.A. 2C:39-7(b). Appropriate fines and penalties were also imposed by the court.

On appeal, defendant asserts the following arguments through counsel:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENTS MADE BY THE DEFENDANT WHILE HE WAS SUBJECTED TO CUSTODIAL INTERROGATION AND WITHOUT HAVING BEEN ADVISED OF HIS MIRANDA1 WARNINGS.

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE FROM ELICITING HIGHLY RELEVANT AND POTENTIALLY EXCULPATORY TESTIMONY BASED UPON THE DEFENSE'S FAILURE TO ABIDE BY ITS DISCOVERY OBLIGATIONS.

POINT III

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS OCCURRING 15 AND 9 YEARS PRIOR TO TRIAL WERE ADMISSIBLE TO ATTACK CREDIBILITY.

POINT IV

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (NOT RAISED BELOW).

POINT V

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WITH RESPECT TO INDICTMENT NO. 07-02-457 AS A RESULT OF THE MANNER IN WHICH THE TRIAL COURT CONDUCTED THE PROCEEDING WHICH RESULTED IN THE JURY HEARING THE NATURE OF THE DEFENDANT'S PRIOR CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN A SCHOOL ZONE (NOT RAISED BELOW).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant asserts the additional arguments in a pro se brief:

POINT I

DEFENDANT CONTENDS THAT THE IDENTIFICATION PROCEDURES USED WERE UNDULY SUGGESTIVE AND RESULTED IN AN UNRELIABLE IDENTIFICATION. FAILURE OF THE POLICE TO CONTEMPORANEOUSLY MEMORIALIZE THE MULTIPLE IDENTIFICATION PROCEDURES USED VIOLATED STATE V. DELGADO, AND THUS VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS.

POINT II

THE AFFIDAVIT FOR THE SEARCH WARRANT LACKED PROBABLE CAUSE.

Based on our review of the record and applicable law, we find error in the court's denial of defendant's motion to suppress post-arrest inculpating statements he made to the police. Accordingly, we reverse and remand for a new trial. In view of this determination, we do not deem it necessary to address the balance of the arguments made on appeal as these issues will abide a new trial.

In light of the retrial, we limit our recitation to those facts relevant to the suppression issue. The following facts are derived from the testimony of Detective Richard Recktenwald at the Miranda hearing and from the testimony and evidence presented at the two trials.

On October 31, 2006, defendant, a regular patron of a Hess gasoline station located in Irvington, arrived to purchase gasoline and cigarettes. After investigating individuals who had thrown stones over the fence at his car, defendant returned to the pumps. Defendant encountered a younger driver, Markeder Alcius, who berated him for blocking pump access. According to a customer, Anthony Lavine, Alcius intentionally drove his white car forward so as to tap defendant's car door and, after an exchange of words, Alcius quickly backed up his car and lightly struck defendant's leg while defendant was standing near the passenger side of Alcius' car.

The gas station attendant, Emmanuel Donkor, testified that he then observed defendant walking to his car, reaching through the open door, and retrieving something. Donkor then noticed a flicker of light traveling from defendant towards the young driver, heard a gunshot, and saw customers fleeing. He saw Alcius drive out of the gas station, speeding towards Springfield Avenue, and watched his car "jump to the sidewalk" as it approached Bruen Avenue. Donkor also observed defendant return to his car and drive west towards Irvington Center.

Lavine corroborated that he heard a loud bang and ducked for cover. He next heard a car "careening" down the street, looked up to see it was the white Cadillac, and heard a second bang when the car hit something. He also saw another car leave the station, heading west on Springfield Avenue towards Irvington Center.

Another witness, Cecelia Harris, heard the two men arguing regarding an accusation of one having hit the other's car and called 911 on her cell phone. She then heard two gun shots, saw people scatter, and watched what he described as a cream-colored car speed out of the station and crash into a building while the other car headed towards Irvington Center.

Two Irvington police officers responded to the call and observed the white Cadillac on the sidewalk facing a building at the southeast corner of Springfield and Bruen Avenues. The officers approached the vehicle and observed damage to its front and a motionless Black male in the driver's seat, slightly slouched towards the passenger side.

Detective Recktenwald of the Essex County Prosecutor's Office was also dispatched to the scene. When he arrived, the police officers had already secured the scene and the victim inside the car had been pronounced dead. An autopsy revealed Alcius' cause of death was a gunshot wound to his left arm and chest. Another detective retrieved a ballistic shell casing on the ground near the rear gas pumps and collected a projectile from the center console of the victim's car.

About six weeks later, Donkor recognized defendant and reported his license plate to the police, who followed up and found defendant on December 18, 2006, at around 5:00 p.m., sitting in his car at his Newark residence. When defendant asked why he was being arrested, Detective Recktenwald responded he would tell him later. Defendant was then handcuffed and Detective Recktenwald transported defendant a short distance to the Irvington police station. The route permitted the detective to pass by the Hess gasoline station, at which time the detective told defendant he was under arrest because of a shooting that happened there. Defendant put his head down and the detective said he would like to speak with defendant about it. When defendant did not reply, the detective told defendant he was either a "stone cold killer" or something had happened that night. Defendant denied he was a "stone cold killer" and said he would talk to the detective.

After dropping defendant off at the police station, Detective Recktenwald returned to defendant's apartment to execute search warrants with other detectives from the prosecutor's office. The detective had not advised defendant of his Miranda rights at the time of his arrest or during the ride to the police station.

After an approximate one hour and fifteen minute search, Detective Recktenwald returned to police headquarters and found defendant, who was supervised by two police officers, sitting in a lunchroom with one hand cuffed to a chair. The detective asked if defendant wanted to talk to him and explain what happened that evening. Defendant replied in the affirmative, noting, however, that his brother had told him he should have an attorney. The detective explained it was not his brother's decision, and defendant's version of events might help his case. The detective recalled that the exchange with defendant lasted more than ten minutes, but less than thirty.2 Detective Recktenwald further explained he told defendant:

[I]f you had gone into a bank and shot a guard and a teller and robbed a bank and killed everybody in front of people, there's nothing that you could tell me that could help you. But I don't believe this is that type of situation that occurred that night.

The detective offered to leave the room so defendant could call and tell his brother what happened at the gas station, and then make an informed decision about whether he wanted an attorney. Defendant, however used his cell phone to call his brother in the detective's presence, and after a brief conversation, reported that his brother did not want him to talk without an attorney present. The detective offered a second time to leave the room to allow defendant to explain the circumstances to his brother. Defendant declined, saying he had to abide by his brother's wishes because his brother would be the person paying for his attorney. The detective elicited these responses without advising defendant of his Miranda rights.

At that point, the detective stopped questioning defendant. On his way to processing, where he would be formally charged, defendant said, "that guy was an asshole that night." He explained to Detective Recktenwald that he was buying cigarettes at the Hess station, someone threw rocks at his car, and he went to investigate. As he returned to his car, some "guy started . . . cursing, yelling and beeping his horn at me." Defendant continued explaining that when he got closer to his car, the guy hit him with his car, causing defendant's limp, "and then I shot him."

After pausing "for a minute," defendant said he had taken a gun from the victim. When Detective Recktenwald asked what he did with the gun, defendant replied that he left it at the gas station. Defendant declined to waive his right to counsel and provide a formal recorded statement, stating that speaking without an attorney would be against his brother's wishes. The detective asked no further questions.

Following a Miranda hearing, the court denied defendant's motion to suppress his inculpating statements save for defendant's last statement in response to the detective's question about what he did with the gun. The court found the detective asked the latter question after defendant had finished speaking, the question was interrogating, and it was asked without first issuing the Miranda warnings.

Defendant did not testify in the first trial and was convicted of the lesser-included offense of passion/provocation murder and the two weapons offenses contained in the first indictment. He testified at the second trial. He explained that the young driver hit his car at the pump, became abusive towards him, backed up quickly and ran over his feet, and then caught defendant's leg and knocked him off balance. According to defendant, he then ran to the car's window, "jumped in," and put the driver in "an upside down choke hold." Defendant then saw a red light, which he assumed was a laser-beamed weapon and, after a struggle, it discharged and a bullet grazed him in the leg. As defendant tried to grab the gun, the driver applied the gas and the car took off. Defendant further testified that at some point the car went over a pothole, defendant bounced out of the car, and the gun "said pow." The car ran over defendant's leg and ankle as it left the station.

Defendant maintained that the gun did not belong to him and he held it for only ten seconds. He explained that he did not report the incident to the police largely because he had been convicted of a crime thirty years earlier and had served time in prison. The jury found defendant guilty of the charge in the second indictment of possession of a firearm by a convicted felon. This appeal ensued.

We address defendant's challenge to the admission of post-arrest statements he made to the police. Defendant argued his inculpating statement were inadmissible because he was not given Miranda warnings while he was in custody, was subject to an interrogation, and he asked for an attorney. The State asserted that defendant voluntarily began to speak to the police and his will was not overborne in any way.

In a written decision of November 15, 2007, the court concluded defendant's confession of having shot the victim was voluntary and admissible. The court expressly credited the testimony of Detective Recktenwald. The court found defendant was arrested during the execution of a search warrant for his residence and further found defendant was in custody when he made the statement about shooting the victim. Additionally, it was undisputed defendant was not Mirandized at all during his time in custody at the police station or prior to his arrival. Accordingly, the court found defendant was not given proper Miranda warnings.

The trial court also found Detective Recktenwald's accusation of defendant as being a "stone cold killer" had "only one design, to elicit a response, either helpful to the investigation or incriminatory of the suspect." Furthermore, recognizing that a suspect "need not be articulate, clear, or explicit in requesting [counsel]; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel[,]" State v. Reed, 133 N.J. 237, 253 (l993) (quoting State v. Bey, 112 N.J. 123, 142 (l988)), the court found defendant's statement to the detective that his brother would be the person supporting him and he had to abide by his brother's wishes was "an ambiguous request for an attorney" under Miranda. The court was satisfied the detective properly ceased questioning defendant after informing him that the decision to talk to the police rested with him, not his brother.

Citing State v. Mallozzi, 246 N.J. Super. 509, 516 (App. Div.), holding that "unexpected incriminating statements made by in-custody defendants in response to non-investigative questions by the police without prior Miranda warnings are admissible[,]" certif. denied, 126 N.J. 33l (l99l), the court determined defendant had "blurted out" his confession after invoking his right to counsel and while Detective Recktenwald was ascertaining "pedigree information." The court found State v. Cryan, 363 N.J. Super. 442 (App. Div. 2003) distinguishable, noting defendant "did not seek out the conversation with the police." It also found State v. Sanchez, 224 N.J. Super. 231 (App. Div. 1988) distinguishable because Detective Recktenwald's accusation of defendant as a "stone cold killer" was not an open ended, single, general question, but rather was directed solely toward the defendant, was related to the arrest, was not an essential part of the investigation, and did not call for an admission of guilt.

Further, although it found the actions of Detective Recktenwald to be similar to those of the detective in State v. Ward, 240 N.J. Super. 412 (App. Div. 1990), in which we suppressed a confession, the court concluded that the "elapse of time mitigates toward the conclusion that the statement should not be suppressed." The court explained that defendant did not undergo a "barrage of character attacks" by the detective, the confession did not occur in transit when the detective called defendant a "stone cold killer," and even if the detective's accusation might have enticed defendant to respond at the time, he did not do so until over one hour and fifteen minutes later. Moreover, the confession occurred after the interrogation had ceased when defendant had invoked his right to counsel. The court further found the detective's actions not to rise to the level of egregiousness depicted by the officer in State v. Brown, 282 N.J. Super. 538 (App. Div.), certif. denied, 143 N.J. 322 (1995), because he "did not engage in a tirade of the evidence" against defendant, or "present a long[-]winded argument as to how the police knew" defendant had committed the crime.

We review the record on a motion to suppress to determine whether the findings are supported by sufficient credible evidence and the legal conclusions are valid. State v. Yohnnson, 204 N.J. 43, 62 (2010); State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). Deference should be given to those findings that are influenced by the trial judge's opportunity to see and hear the witnesses, and to have the "feel" of the case. Smith, supra, 374 N.J. Super. at 430.

Miranda warnings are triggered when an individual is taken into custody and subjected to questioning. State v. Stott, 171 N.J. 343, 364 (2002). The warnings advise suspects they have the right to remain silent, anything they say can and will be used against them as evidence, that they have the right to counsel, and counsel will be appointed for them if they cannot afford one. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07.

The warnings are deemed necessary "due to the pressure inherent in an 'incommunicado interrogation of individuals in a police-dominated atmosphere[.]'" Stott, supra, 171 N.J. at 364 (quoting Miranda, supra, 384 U.S. at 445, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). They must be given when a person is subject to custodial interrogation, meaning "'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Brown, 352 N.J. Super. 338, 351 (App. Div.) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706), certif. denied, 174 N.J. 544 (2002). "Unless the prosecution demonstrates that the individual was informed of his rights and knowingly, voluntarily, and intelligently waived them, 'no evidence obtained as a result of interrogation can be used against him.'" State v. O'Neill, 193 N.J. 148, 168 (2007) (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726).

Miranda's protection extends only to words or actions of law enforcement officers "reasonably likely to elicit an incriminating response." Cryan, supra, 363 N.J. Super. at 452; State v. Bohuk, 269 N.J. Super. 581, 594 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994). Thus, the interrogation "'must reflect a measure of compulsion above and beyond that inherent in custody itself.'" Bohuk, supra, 269 N.J. Super. at 594 (quoting Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980)).

Voluntary statements not elicited through interrogation, which are made by a suspect in custody, are admissible at trial. Bohuk, supra, 269 N.J. Super. at 594. Stated differently, a statement is admissible into evidence when it is "voluntarily blurted out by an accused in custody where the police have not subjected him [or her] to an interrogative technique or where the police are about to begin giving the Miranda warnings." Ward, supra, 240 N.J. Super. at 4l9. As we explained in Ward, "the police surely cannot be held accountable for the unforeseeable results of their words or actions." Id. at 418 (quoting Innis, supra, 446 U.S. at 301-02, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308).

Defendant relies in part on Ward, supra, 240 N.J. Super. at 416-19, to argue his confession was inadmissible. There we reversed the trial court and suppressed statements made by a defendant who was incarcerated on unrelated charges and confronted in his cell by a detective in charge of the robbery investigation, told of the robbery and the formal charge against him, and then shown photographs of two other suspects without being advised of his Miranda rights. Id. at 419. We determined the detective was attempting to entangle the defendant in the criminal event by designing the undertaking to elicit a response which would help the investigation and incriminate the defendant. Id. at 418. We, therefore, concluded the detective's confrontation with the defendant "was the functional equivalent of an interrogation," and the defendant's "response was not simply a spontaneous outburst elicited casually or innocently without the State's purposeful enticement or encouragement." Id. at 417. Accordingly, the defendant should have been given Miranda warnings before, not after, the defendant was confronted in his cell. Id. at 418.

In Brown, supra, 282 N.J. Super. at 550, also cited by defendant, we reversed the denial of suppression of the defendant's oral statements, concluding the statements, made without Miranda warnings, were more egregious than the police action described in Ward. In Brown, after the defendant said he wanted to know the reason he was being charged, the investigator confronted him with evidence of his guilt, including a detailed forty-five minute to one-hour prepared explanation of all the evidence against him. Ibid. The defendant then stated, "it was an accident" and "he had not meant to kill the victim." Id. at 549. We concluded the itemization of the evidence should have been preceded by Miranda warnings because the investigator "knew or should have known that [the] defendant was likely to respond in some manner to the evidence presented." Id. at 550.

In contrast, in Mallozzi, supra, 246 N.J. Super. at 511, 515-16, we found admissible without Miranda warnings unexpected incriminating statements made by an in-custody defendant in response to non-investigative questions by a federal agent informing him of pending county charges during a booking process on a fugitive warrant. We were not convinced the actions of the federal agent constituted "the functional equivalent of interrogation resulting in [the] defendant's incriminating statement" because there was no "measure of compulsion above and beyond that inherent in the custody itself." Id. at 5l5 (citation and quotation marks omitted). Rather, the booking procedures and routine questions associated with them were "ministerial in nature and beyond the right to remain silent." Ibid. Additionally, the federal agent was "merely providing [the] defendant information to which he was otherwise entitled" and was not intended to elicit any response, thus there was no "interrogation." Id. at 516.

Similarly, in Cryan, supra, 363 N.J. Super. at 453-54, we concluded the defendant's post-arrest statements were properly admissible without the benefit of Miranda warnings because they were "not the product of police interrogation or its functional equivalent." There, the defendant was arrested for driving under the influence of alcohol and was sent to the hospital after requesting medical attention. Id. at 444-46. The defendant, however, refused treatment, exited the ambulance, and told one of the officers he wanted to speak to her alone. Id. at 446. He was told the other officer had to be present. Ibid. When neither officer responded to the defendant's unsolicited request to give him "a break," he called one a vulgar name. Ibid. The defendant then was handcuffed and transported to the hospital, without Miranda warnings, during which he continued making unsolicited derogatory statements to the officer. Ibid. Defendant told the officers at the hospital that he had given the arresting officer "'all his PBA cards' in an unsuccessful attempt to dissuade her from pursuing the DWI case against him." Id. at 447.

In contrast to Ward and Brown, we held the defendant's statements were properly admitted by the trial court because they were all initiated by the defendant and "were not the product of police action or part of a premeditated investigatory tactic designed to elicit an incriminating response." Id. at 452-53. We concluded the police conduct was even more benign than in Mallozzi, supra, the police were not obligated to advise the defendant of his Miranda rights before responding to his unsolicited remarks, and the defendant had only himself to blame for the self-incriminating statements he made to the police. Id. at 453-54.

More recently, in State v. Brabham, 413 N.J. Super. 196, 211 (App. Div.), certif. denied, 203 N.J. 440 (2010), we affirmed the trial judge's conclusion that Miranda had no application to statements made voluntarily by the defendant to police officers during a meeting at a correctional facility. We found no evidence in the record to suggest that the officers said or did anything reasonably likely to evoke the defendant's statements assuring them that they had done their job and found the person who committed the crimes. Ibid. See also State v. Beckler, 366 N.J. Super. 16, 25 (App. Div.) (holding the defendant's post-cessation custodial statements did not violate Miranda because they were unsolicited, spontaneous, and not made in response to "questioning or its functional equivalent"), certif. denied, 180 N.J. 151 (2004).

There is no dispute defendant was arrested and taken into custody, was not read Miranda warnings, and had invoked his right to counsel when he made the incriminating statement about shooting Alcius. Additionally, as recognized by the court, Detective Recktenwald's decision to transport defendant past the Hess station en route to the police station and his accusation then that defendant was a "stone cold killer" was part of a premeditated investigatory tactic to obtain information.

The tactic worked, as defendant indicated he would talk to the detective, presumably to explain why the moniker was inaccurate. Detective Recktenwald replied he would see him later and searched him out at the police station after defendant had time to reflect. By that time, defendant was handcuffed to a chair and sitting in a room. Rather than issuing Miranda warnings to defendant, the detective encouraged defendant to talk with him outside the presence of counsel. The detective persisted despite defendant's express statement that his brother had told him he should have an attorney. Detective Recktenwald then suggested to defendant that his explanation of the events at the gas station might help his case, using the bank robbery analogy to cajole defendant into admitting he shot the victim in self defense. The detective continued to badger defendant, stopping only after the third time defendant repeated that he would abide by his brother's wishes to retain counsel. Although the detective asked no more questions, he followed defendant to processing, at which time defendant made the inculpating statement.

We part company with the court's assessment of the police conduct. There is no excuse for the police tactic of declining to Mirandize defendant at any time after he was arrested and placed in custody in the police car. We regard Detective Recktenwald's conduct as an improper stealth process designed to elicit incriminating evidence without express questioning of defendant. Although the detective did not attack defendant's character or review the evidence against him, he nonetheless subjected defendant to an interrogative technique designed to encourage him to make incriminating statements.

Contrary to the court's finding, Detective Recktenwald did not meet with defendant for casual conversation or to ask routine ministerial or "pedigree" questions, but to question defendant about the shooting at the Hess gasoline station. Moreover, he continued to prod defendant even after defendant mentioned obtaining an attorney. Defendant's post-arrest statements were not a "spontaneous outburst elicited casually or innocently without the State's purposeful enticement or encouragement." Ward, supra, 240 N.J. at 417. Instead, defendant gave his confession to refute Recktenwald's characterization during the functional equivalent of an interrogation.

This case presents the "classic stationhouse interrogation contemplated by Miranda," a defendant deprived of his freedom and questioned by a homicide detective in a coercive police atmosphere without being advised of his right to remain silent or retain an attorney. O'Neill, supra, 193 N.J. at 169. Because the police failed to inform defendant of his Miranda rights, defendant's statement cannot not be used against him. See id. at l70 (addressing two-step "question first, warn later" interrogations, when Miranda warnings were given after a custodial interrogation had already produced incriminating evidence).

In summary, defendant's confession and final statement were made during the functional equivalent of a custodial interrogation, without Miranda warnings, and after he had asserted his right to an attorney. Under the circumstances presented here, his post-arrest statements should have been suppressed.

As defendant's incriminating statements were central to the State's case, their admission was not harmless error. R. 2:10-2. "The test for determining whether an error is harmless 'is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" State v. Sanchez, 129 N.J. 261, 278 (1992) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 710 (1967)). In Sanchez, the Court was uncertain whether the error contributed to the defendant's conviction and, therefore, rejected the State's argument that it was harmless based on overwhelming evidence of guilt from eyewitnesses' accounts of the murder. Id. at 278. See also O'Neill, supra, 193 N.J. at 184 (holding admission of incriminating statements that the defendant had a robbery motive, he shot the victim, and he discarded the gun was not harmless error given their "centrality" to the prosecution's case). Although Donkor testified about observing defendant take "something" from his car, hearing a gunshot, and noticing "a flicker of light traveling from defendant towards the young driver," we are not satisfied the evidence of defendant's guilt was so overwhelming so as to render the improper admission of his confession harmless error.

Reversed and remanded for a new trial.

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

2 The detective also testified that defendant did not appear to be under the influence of alcohol or drugs, did not seem sleep deprived, seemed coherent, was not threatened with any physical harm, and did not complain of any injuries or pain. These facts appear to be undisputed.