STATE OF NEW JERSEY v. KEVIN DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5105-10T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEVIN DAVIS,

Defendant-Respondent.

__________________________

February 21, 2012

Submitted January 24, 2012 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-08-00277.

Thomas S. Ferguson, Warren County Prosecutor, attorney for appellant (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from a February 22, 2011 order granting defendant's suppression motion, and from a May 4, 2011 order denying the State's motion for reconsideration. We affirm.

The facts are straightforward. There is no dispute that, after the police allegedly found contraband at a house where defendant and co-defendant Shajabber McRae were staying,1 the two men were arrested, taken to the police station and placed in a holding cell. Detective Douglas Baylor, a twelve-year veteran of the Phillipsburg police force, was one of the arresting officers.

At the police station, Detective Baylor entered the holding cell area and advised the two suspects that they were being charged with cocaine possession, possession with intent to distribute cocaine, possession of a firearm, possession of drug paraphernalia, and illegal possession of a prescription drug. Without giving defendant or his co-defendant any Miranda2 warnings, Detective Baylor then asked them "if they were willing to provide a statement as to the incident that occurred earlier that day." McRae stated that he did not wish to speak with Baylor. However, when Baylor asked "the same question of Mr. Davis," defendant "stated that the stuff that was found at the house was all his, but he did not want to go on tape." Baylor testified that his plan was to ask defendant if he was willing to give a statement and then administer Miranda warnings if defendant agreed to give a statement.

In an oral opinion placed on the record immediately after the hearing on January 21, 2011, Judge Coyle ruled that Baylor's question was the beginning of an interrogation of defendant, without Miranda warnings, and defendant's statement in response to Baylor's question would therefore be suppressed. The judge issued a comprehensive written opinion after denying the State's reconsideration motion.

Relying on Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), Judge Coyle found that defendant was "asked a direct question by a police officer while in custody." The judge reasoned:

The Court has little trouble in concluding that defendant was asked an express question by Det. Baylor while in a holding cell, to wit: Are you willing to provide a statement as to the incident that occurred earlier that day. In light of Innis, the State's contention that an express question merely constitutes a threshold inquiry "normally attendant to arrest and custody" is unconvincing. Miranda and its progeny are clear. An express question of a suspect in a custodial setting requires certain procedural safeguards that are necessary to protect a defendant's Fifth and Fourteenth Amendment privilege against self-incrimination.

Judge Coyle held that the detective's subjective intent was irrelevant. "Rather, it is the Defendant's perception that is relevant." Viewing the situation from the perspective of an incarcerated defendant, the judge concluded that "an express question regarding the charged offenses directly asked of a defendant in a holding cell triggers the Miranda safeguards." Judge Coyle also carefully distinguished several unreported decisions that the State cited. Those cases involved genuinely spontaneous statements, not made in response to police questioning, and involved defendants to whom the police had already administered Miranda warnings or to whom they were in the process of reading their Miranda rights.

In reviewing the trial court's decision, we defer to the judge's findings of fact so long as they "can reasonably be reached on sufficient credible evidence present in the record." State v. Diaz-Bridges, ___ N.J. ___, ___ (2012)(slip op. at 20); State v. Elders, 192 N.J. 224, 245 (2007). On this record, we find no basis to disturb the trial court's decision, and we affirm for the reasons stated in Judge Coyle's cogent written opinion. We add only the following comments.

Addressing the issue of what constitutes police "interrogation" of a suspect, which cannot be conducted before giving Miranda warnings, the Supreme Court held:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.

[Rhode Island v. Innis, supra, 446 U.S. at 300-01, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 307-08 (footnotes omitted).]

On this appeal, the State concedes that defendant was in custody when Detective Baylor asked him if he was willing to give a statement. However, the State persists in the untenable position that asking an incarcerated suspect if he is willing to give a statement is not "interrogation" for purposes of Miranda. Manifestly, it is, and the procedure Detective Baylor followed here was the diametric opposite of what the law required.

The facts of this case illustrate the point. Detective Baylor approached the two incarcerated men, reeled off a long list of the serious charges they faced, and then asked if either of them would be "willing to give a statement" about "the events" at the house where they were arrested. Viewed objectively from the defendant's perspective, Baylor was clearly beginning an interrogation. See State v. Brown, 282 N.J. Super. 538, 549-50 (App. Div.), certif. denied, 143 N.J. 322 (1995). And it is hardly surprising that his interrogation yielded an incriminating statement, since it was an invitation to discuss the events giving rise to defendant's arrest. See State v. Ward, 240 N.J. Super. 412, 417-18 (App. Div. 1990). On these facts, Judge Coyle properly granted the suppression motion.

Affirmed.

1 The State's brief contains a lengthy factual recitation, filled with irrelevant matter and with no citations to the record. However, there appears to be no dispute concerning the location of the arrest or that the police found drugs in the house, although that information was not in the record of the suppression hearing.

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