STATE OF NEW JERSEY v. CHRISTIAN DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

CHRISTIAN DAVIS, a/k/a

CHRISTIAN A. DAVIS, CHRISTIAN

SHERONE DAVIS,

Defendant-Appellant.

_________________________________

Submitted June 18, 2013 Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 09-05-0801 and 09-05-0804.

Joseph E. Krakora, Public Defender, attorney

for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress his statement to police, defendant Christian Davis pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant admitted that on March 4, 2009, he possessed a .380 caliber semi-automatic handgun in Carteret and that he was previously convicted of a disqualifying crime. In accordance with the terms of his plea agreement,1 defendant was sentenced to a five-year term with a five-year period of parole ineligibility. Defendant appeals, and we affirm.

According to the State's proofs at the suppression hearing, shortly after midnight on March 4, 2009, Detective Sergeant Raymond Novak of the Carteret Police Department responded to a call about a shooting at a local bar/restaurant. There, he collected bloody napkins and saw blood splatter in the men's room. Officers present at the time advised Sergeant Novak that they had spoken with defendant, who seemed hesitant to give them any details of the incident other than he was a shooting victim. Sergeant Novak then went to the hospital where defendant had been transported for treatment to a gunshot wound on his left leg.

Sergeant Novak inquired of defendant what had happened, to which he replied that several people had assaulted and shot him at a local intersection. During the conversation, Novak noticed that defendant's body language and responses seemed somewhat inconsistent, prompting the officer to request that, upon his release from the hospital, defendant come to police headquarters to give a statement about the attack. Defendant agreed to do so and upon his discharge,2 was driven to the police station by his mother.

Meanwhile, Sergeant Novak had returned to headquarters where, waiting for defendant, he inspected the pants defendant was wearing at the time of the incident and found no entrance hole. When defendant arrived at headquarters at 4:50 a.m. with his mother, he was neither handcuffed nor restrained in any manner. When asked what happened, defendant gave a short videotaped statement at the outset of which defendant asked Sergeant Novak whether the wound looked self-inflicted, to which the officer replied that it did. Defendant then volunteered that he was at the bar, intoxicated, and while in the men's restroom, the safety on his gun went off and the gun discharged. This videotaped discussion lasted less than five minutes.

As soon as defendant admitted shooting himself in the leg, Sergeant Novak issued him Miranda3 warnings, considering him no longer a victim but a possible suspect. Defendant asked for counsel and all questions ceased. Defendant then asked Sergeant Novak what would happen next, to which the officer responded that he could have no further discussions with defendant unless he revoked his right to an attorney. When defendant uttered that Sergeant Novak could not do anything for him, the officer replied that "all I'd be concerned about is getting the gun off the street, that's all." At this point, Novak got up, left defendant alone in the room, and the recording stopped.

According to Novak, after the recording was turned off, and they entered the processing room, defendant again asked the officer what would happen next, to which Sergeant Novak responded that he would continue the investigation and reiterated his concern over "getting [the gun] off the street" lest "some kid walking to school in the morning find[s] [it] and something bad happen[s]." Perhaps sharing the same concern because he knew the gun was near an elementary school, defendant agreed to show Sergeant Novak where he had hidden the gun. Before doing so, however, Sergeant Novak asked defendant if he wanted to revoke his Miranda right to have counsel present, but defendant declined to go back on the record. Instead, he led Sergeant Novak to the loaded gun in a garbage can right next to an elementary school. Defendant was subsequently charged with, among other things, possession of the stolen handgun.

Defendant offered a different account. According to defendant, Sergeant Novak called him on his way home from the hospital and demanded that he come to the police station immediately, threatening to come to his house if defendant did not comply. While defendant admitted leading Sergeant Novak to the gun, he denied that he offered to continue speaking with the officer once he invoked his right to counsel. Defendant explained that on the night of the incident, he had been drinking for most of the day and that he was discharged from the hospital with prescription pain killers.

At the close of evidence, the judge denied defendant's motion to suppress. Crediting the testimony of Sergeant Novak over that of defendant, the motion judge found that because defendant came to the police station voluntarily, was considered a victim, and was free to leave at any time, his statement that he shot himself in the leg was not the subject of custodial interrogation, "was not under the protections of Miranda," and therefore was admissible as voluntarily rendered. Moreover, after being advised of his Miranda rights and invoking his right to counsel, "defendant initiated further conversation about the subject matter of the criminal investigation[,]" and thereby "revoked his previously asserted right to counsel." Consequently, the motion judge concluded that defendant's offer to show Sergeant Novak the location of the gun, made after afforded the opportunity once again to speak with counsel, was voluntarily made as well.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED BY FAILING TO SUPPRESS ALL STATEMENTS MADE BY DEFENDANT DURING HIS CUSTODIAL INTERROGATION.

a. The initial interrogation of defendant was conducted in abrogation of his Constitutional rights.

b. The post-Miranda statements were obtained unlawfully after defendant had invoked his Constitutional right to counsel.

c. Even if this Court decides that the post-Miranda remark by the detective was not "questioning," defendant's subsequent inculpatory statements should not be deemed to have been voluntary.

A.

A person subject to custodial interrogation must first be informed of his right to remain silent and right to counsel. Miranda v. Arizona, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. The predicate requirements of Miranda then are that defendant must be in custody and under interrogation. Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. Williams, 59 N.J. 493, 501 (1971).

"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[.]" State v. P.Z., 152 N.J. 86, 103 (1997). Courts employ an objective totality of the circumstances test. Id. at 102-03. Factors used in this objective determination "include: the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005); see also State v. Brown, 352 N.J. Super. 338, 352 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Here, the motion court credited Sergeant Novak's testimony that defendant came to the police station voluntarily, accompanied by his mother, after a request that he clarify some matters. Defendant also agreed to give a videotape statement, which lasted no longer than five minutes. During this time, defendant was neither handcuffed nor restrained in any manner, and he was given a drink. No pressure was exerted upon defendant to detain him and he actually initiated the conversation about the nature of the wound. The atmosphere was neither coercive nor threatening and, as the videotape demonstrates, defendant's demeanor was calm and coherent, and not affected by drugs or alcohol.

Given the totality of these circumstances, objectively considered, the motion judge found that defendant's admission of shooting himself in the leg was not the result of "custodial" interrogation and was freely rendered. We defer to the motion judge's credibility findings and factual determinations as he had the unique opportunity to hear and see the testifying witnesses at the suppression hearing. See State v. Yohnnson, 204 N.J. 43, 62 (2010); State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 471 (1999). Moreover, these findings are corroborated by the videotape recording and supported by substantial credible evidence in the record.

B.

Of course, once defendant admitted shooting himself, he was no longer free to leave and thus in "custody", at which time he was properly advised of his Miranda rights. As evidence of defendant's understanding, he invoked his right to counsel, only then to revoke it when he voluntarily initiated a conversation with Sergeant Novak that led to the discovery of the hidden gun. As the motion judge found, "[b]ecause police did not initiate the subsequent communication in this case, they were not required to re-Mirandize defendant, rendering his statements admissible." We agree.

Once a defendant invokes his right to counsel, the police must "scrupulously honor" that request. Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975). All questioning must cease unless defendant thereafter waives his rights. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981); State v. Alston, 204 N.J. 614, 619-20 (2011); State v. Melendez, 423 N.J. Super. 1, 23 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012). In determining whether a defendant has voluntarily, knowingly and intelligently waived his constitutional rights, a court examines the totality of the circumstances surrounding the waiver. P.Z., supra, 152 N.J. at 102-03; State v. Fuller, 118 N.J. 75, 87 (1990); Melendez, supra, 423 N.J. Super. at 29-30. The test is an objective one. State v. Burno-Taylor, 400 N.J. Super. 581, 606 (App. Div. 2008).

A clear manifestation of waiver occurs when an accused initiates further discussions with the police. Edwards, supra, 451 U.S. at 484-85, 486 n.9, 101 S. Ct. at 1884-85, 68 L. Ed. 2d at 386-87; Alston, supra, 204 N.J. Super. at 619-20; State v. Hartley, 103 N.J. 252, 256 (1986); Melendez, supra, 423 N.J. Super. at 29-30. In such a case where a defendant reinitiates the conversation and indicates a willingness and a desire to talk, there is no requirement that his Miranda rights be re-read to him. Hartley, supra, 103 N.J. at 256. This is so because defendant's statements are self-motivated and spontaneous, and not the product of an "interrogation."

"Interrogation," in the Miranda context, refers not only to express questioning by police but also to words or actions that police should know are reasonably likely to elicit an incriminating statement. Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980); State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003); State v. Lozada, 257 N.J. Super.260, 268 (App. Div.), certif. denied, 130 N.J.595 (1992). Here, Sergeant Novak ceased questioning defendant immediately after defendant confessed about the accidental shooting and administered him his Mirandarights. Sergeant Novak never resumed questioning after defendant invoked his right to counsel, nor did he engage in its functional equivalent when, responding to defendant's questions, the officer expressed his concern over the possibility that children might find the gun.

In Innis, supra, the defendant had been suspected of robbing and killing taxicab drivers with a sawed-off shotgun. When the police arrested him, they repeatedly read him his Mirandarights, and the defendant invoked his right to counsel. On the way to the police station, the defendant was in the backseat of a squad car accompanied by three officers. The officers were having a conversation and one of them stated that there were "a lot of handicapped children running around in this area"because a school for handicapped children was located nearby, and "God forbid one of them might find a weapon with shells and they might hurt themselves." Innis, supra, 446 U.S. at 294-95, 100 S. Ct. at 1686, 64 L. Ed. 2d at 304. In the course of this conversation, the officers were interrupted by the defendant, who directed them to turn the squad car around so that he could show them where the gun was hidden. The Supreme Court concluded that the defendant

was not "interrogated" within the meaning of Miranda. It is undisputed that the first prong of the definition of "interrogation" was not satisfied, for the conversation between . . . [the officers] included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited.

Moreover, it cannot be fairly concluded that the respondent was subjected to the "functional equivalent" of questioning. It cannot be said, in short, that . . . [the officers] should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent. There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest.

The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few offhand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent's contention that, under the circumstances, the officers' comments were particularly "evocative." It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.

[Id. at 302-03, 100 S. Ct. at 1690-91, 64 L. Ed. 2d at 308-09 (footnote omitted).]

Similarly here, we do not find that Sergeant Novak's mere expression of concern over the safety of children amounted to "interrogation" in the Miranda context. Nothing in the record suggests that Sergeant Novak was aware that defendant was peculiarly susceptible to such an expression of concern or that it was reasonably calculated to elicit an incriminating response. On the contrary, the officer'scomment was simply in reply to defendant's repeated inquiry about the next steps in the police process, which defendant initiated both in the interview room on videotape and again outside the room on the way to be processed for firearm offenses. Indeed, even after defendant volunteered to reveal the location of the gun, Sergeant Novak inquired whether defendant first wanted to speak with an attorney.

Under these circumstances, we are satisfied, as was the motion judge, that after invoking his right to counsel, defendant freely chose to continue the dialogue with Sergeant Novak by engaging the officer in further conversation. Nothing in the record indicates defendant's decision was other than freely and knowingly made; was the product of police pressure, persistence or coercion; or resulted from intoxication, fatigue or some other incapacitating mental or physical condition. Rather, the record makes clear that defendant revoked his earlier assertion of the right to counsel by initiating communication with the police, obviating any need to re-issue to him his Mirandarights, which he had knowingly and voluntarily waived. State v. Knight, 145 N.J.233, 258 (1996).

Affirmed.

1 As per the plea agreement, the remaining counts charging third-degree receiving stolen property, N.J.S.A. 2C:20-7, and fourth-degree concealment of a defaced firearm, N.J.S.A. 2C:39-9(e), were dismissed.

2 Defendant was discharged with a prescription for aspirin and ointment only.

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