STATE OF NEW JERSEY v. FRANCISCO MONTEROTORIVO

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

FRANCISCO MONTEROTORIVO,

Defendant-Respondent.

______________________________

June 16, 2015

Submitted March 16, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-07-02351.

James P. McClain, Atlantic County Prosecutor, attorney for appellant (Julie H. Horowitz, Assistant County Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Timothy P. Reilly, Designated Counsel, on the brief).

PER CURIAM

An Atlantic County grand jury indicted defendant Francisco Monterotorivo, charging him with one count of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2), and four counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1), (2), and (3) and N.J.S.A. 2C:12-1(c). The charges arose from defendant's alleged attempt to kill his victim by pinning him between two cars. After his indictment, defendant moved to suppress statements he made to a police officer at the scene of the alleged crime. Following an evidentiary hearing, the Law Division granted defendant's motion to suppress the statements. We granted the State's motion for leave to appeal.

In its appeal, the State argues the court should have denied defendant's motion because he "was not in custody or being interrogated," making Miranda1 warnings unnecessary. Defendant responds by arguing the motion judge properly suppressed his statements because "the probative value of the statements were substantially outweighed by [their] apparent prejudice given the language barrier that existed between [the police officer] and [defendant]," and due to the police officer's failure to comply with Miranda.

We have reviewed the record and applicable principles of law. For the reasons that follow, we reverse the suppression of defendant's statement and remand to the trial court for further proceedings.

We discern the facts from the testimony of David Ficca, a patrolman with the Somers Point Police Department, and the only witness to testify at the evidentiary hearing.

On October 13, 2013, Ficca received a call to investigate the scene of a pedestrian, motor-vehicle accident, in which a pedestrian was reported to be "under a vehicle." When he arrived at the scene, he found a crowd of people who directed him to an injured individual who was on the ground between two vehicles. There were no occupants in either of the vehicles involved.

After an ambulance arrived, Ficca asked a woman who was standing nearby whether she was one of the drivers. She responded by identifying defendant as the driver of one of the vehicles. In pursuing his investigation of what occurred in what he believed to be a traffic accident, Ficca approached defendant as he stood in a driveway. In response to Ficca's question about whether he was a driver, defendant identified the car he had been driving and told Ficca, in "broken" English, that when he came home he found the victim's car blocking defendant's driveway from the street. Ficca initially understood defendant to have told him that while he moved the victim's car he struck the victim accidently. Later, in the same brief conversation, defendant clarified that he first asked the victim to move his car and when he refused, defendant accidently accelerated his own vehicle and crashed into the victim. Ficca did not ask defendant anything more.

"At times," Ficca had trouble understanding defendant, in part, "due to a language barrier," and because he could not hear defendant it was "a little of both." Evidently, defendant's primary language was Spanish and neither Ficca nor other officers at the scene spoke that language. However, defendant responded appropriately to Ficca's questions "in the context of" the questions he was asking defendant, although he did have to ask defendant to repeat his answer "a couple of times." He would first wait for defendant to complete his statement and then ask him to repeat it, which defendant did.

Also, Ficca neither arrested nor handcuffed defendant while he was speaking to him in the driveway. However, Ficca confirmed that because defendant was identified as one of the drivers involved in the accident, in which a person was injured, defendant was required to remain at the scene. If defendant tried to leave, Ficca would have compelled him to stay. Ficca also confirmed he did not advise defendant of his Miranda rights prior to discussing the incident, even though he knew there was potential for criminal charges being brought against a driver involved in an accident in which another person was injured. However, it was only after Ficca and other officers conducted further investigation into the incident that they made the decision to arrest defendant.

After considering Ficca's testimony and counsels' arguments, the court granted defendant's motion. In granting the motion, the court first found defendant "was not in custody" and Ficca's questioning was "not a custodial interrogation." Rather, it was "part of routine police investigation at the scene of an accident," which did not require Miranda warnings. However, the judge was concerned with Ficca's having some "trouble understanding" defendant.

The judge noted the statements which defendant sought to suppress were "not important" because other witnesses confirmed it was a deliberate act and the victim allegedly heard defendant tell "him I am going to kill you today or you're going to die today." The judge believed that to admit defendant's statements would "muddy[] up the record" and there was "no sense of going there because the statements are not purely incriminatory." The judge then concluded by stating

So rather than have all this being argued to the jury . . . he meant this, no, he said this . . . could you have misunderstood this, . . . you have all these direct witnesses that are saying, yeah, he ran this guy over intentionally. He told him he was going to die. That's what the case is about.

So for all those reasons, the officer did nothing wrong. This was the way you investigate every accident. You ask questions at the scene. You don't go to the scene and say to somebody you're under arrest and I'm going to question you, no. You say what happened, who was driving, how'd this happen, whatever.

He was not in custody, but because of the language situation, because of the possibility . . . that the officer may not have heard it absolutely correctly or may not have written it down perfectly and because of the fact that I don't see it being incriminatory at all.

I mean, yeah, is it incriminatory? Yeah. On a scale of one to ten, all the other evidence in this case is a ten and this is about a two. So we're going to . . . make the two disappear so the two won't come in.

This appeal followed.

When reviewing a trial court's decision on a motion to suppress a statement, we generally defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409 (citing State v. Elders, 192 N.J. 224, 243-44 (2007)), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); see also State v. W.B., 205 N.J. 588, 603 n.4 (2011) ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions."). However, we review de novo the trial court's legal conclusions. We are "neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010).

A court's analysis of a defendant's suppression motion involving a statement he gave to police must be guided by fundamental principles of law that apply to custodial interrogation of suspects. Every person has a privilege against self-incrimination. U.S. Const. amend. V; N.J.R.E. 503. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." W.B., supra, 205 N.J. at 605.

When the State intends to introduce a defendant's confession at trial, it "must prove beyond a reasonable doubt that . . . [the] confession was voluntary and was not made because the defendant's will was overborne," State v. Knight, 183 N.J 449, 462 (2005), "and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them." W.B., supra, 205 N.J. at 602 n.3.

In general, the State must prove Miranda warnings were properly given "before a suspect's statement made during custodial interrogation [may] be admitted in evidence." State v. O'Neal, 190 N.J. 601, 615 (2007) (alteration in original) (quoting Dickerson v. United States, 530 U.S. 428, 431-32, 120 S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 412 (2000)). "'[C]ustodial interrogation' [is] questioning initiated by law enforcement 'after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).

[W]hether a suspect is in "custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994). . . . "[T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984).

[Id. at 615-16 (third alteration in original).]

"The rights set forth in Miranda are not implicated when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation, or where the restriction on a defendant's freedom is not of such significance as to compel the conclusion that his liberty is restrained." State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (citations and internal quotation marks omitted), certif. denied, 153 N.J. 216 (1998). "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" does not require Miranda warnings. Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. Accordingly, there is a distinction between detaining a citizen in the course of an investigatory stop, Terry v. Ohio, 392 U.S. 1, 22-23, 88 S. Ct. 1868, 1880-81, 20 L. Ed. 2d 889, 906-07 (1968), and placing a citizen in custody so as to trigger Miranda requirements. See Berkemer, supra, 468 U.S. at 435-42, 104 S. Ct. at 3147-52, 82 L. Ed. 2d at 331-36; see also State v. Smith, 374 N.J. Super. 425 (App. Div. 2005). For that reason, for example, "questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." Berkemer, supra, 468 U.S. at 438, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333.

Even where police have a suspect in mind, they "may conduct general on-the-scene questioning of [the] suspect . . . without giving Miranda warnings." State v. Toro, 229 N.J. Super. 215, 220 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). Thus, for example, Miranda warnings were not required where a defendant, who was suspected of carrying drugs, and who was stopped at Newark Airport from getting into a taxi by DEA agents who asked her to accompany them to the airline ticket office, because the defendant was not subjected to custodial interrogation as the entire encounter only took five minutes, and the questioning was conducted in a public place in a non-coercive environment. State v. Brown, 352 N.J. Super. 338, 354-56 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also State v. Pierson, 223 N.J. Super. 62, 67-68 (App. Div. 1988), (finding "defendant's restraint constituted a permissible investigatory detention rather than rendering him in custody, [and] the absence of Miranda warnings did not preclude the evidentiary use of [the] defendant's responses to the officer's questions" even though defendant was detained for thirty minutes at the scene of a fire investigation while police asked why he was there and then investigated his story).

In the present case, we agree with the Law Division's conclusion that because the police were called to the scene of what they believed was an accident, Ficca's brief conversation with defendant was not a "custodial interrogation." Rather, Ficca conducted an investigatory detention for the sole purpose of finding out what happened. The brief questioning occurred in the afternoon, shortly following the police officer's response to the scene. It took place in a public area, outside. At no time during the brief encounter was defendant handcuffed or otherwise restrained and he was not coerced into saying anything to Ficca.

We part company with the motion judge, however, on his ultimate decision to grant defendant's motion even though the statement was not in response to a custodial interrogation. The court based its decision on the existence of other evidence demonstrating defendant's guilt and on the extent of the language barrier that it perceived existed during Ficca's questioning of defendant. Neither consideration had anything to do with a court's Miranda analysis.

A court's purpose at a Miranda hearing is to determine whether a defendant's statement to law enforcement can be admitted into evidence. The court must determine, from the totality of the circumstances whether a suspect's statement was made during "custodial interrogation" and if so, whether it was given "'voluntarily, knowingly and intelligently.'" State v. Adams, 127 N.J. 438, 447 (1992) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). It is not concerned with whether the purported statement was actually made or was truthful. State v. Miller, 76 N.J. 392, 405 (1978) ("A confession which is the product of physical or psychological coercion must be considered to be involuntary and inadmissible in evidence regardless of its truth or falsity.") (emphasis added). That role is left to the jury. See State v. Hampton, 61 N.J. 250, 272 (1972); see also N.J.R.E. 104(c) and Model Jury Charge (Criminal) "Statements of Defendant" (2010) ("It is your function to determine whether or not the statement was actually made by the defendant, and, if made, whether the statement or any portion of it is credible.").

We conclude, therefore, by granting defendant's motion based on the judge's determination as to whether there was a language barrier or other evidence of defendant's guilt, the court improperly interfered with the province of the jury and overstepped the court's limited role in a suppression hearing.

Finally, we need not consider defendant's argument regarding his exculpatory statement's prejudicial value outweighing its probative value because defendant never raised the argument nor did the trial court otherwise address it in its decision. Even if it were raised, we find the argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded for further proceedings. We do not retain jurisdiction.

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