STATE OF NEW JERSEY v. LINDSAY M. VARGA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3595-06T53595-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LINDSAY M. VARGA,

Defendant-Respondent.

______________________________

 

Submitted September 17, 2007 - Decided September 25, 2007

Before Judges Weissbard and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-07-00258.

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

Yvonne Smith Segars, Public Defender, attorney for respondent (Michael A. D'Anton, Designated Counsel, of counsel and on the brief).

PER CURIAM

The State appeals, on leave granted, from a January 22, 2007 order of the trial court granting defendant's motion to suppress evidence of a statement she made to a loss prevention officer at her place of employment and her later statement to the police. We remand to the trial court for reconsideration.

These are the most pertinent facts as presented at the hearing on the suppression motion. Lindsay M. Varga, a grocery store employee, was photographed on the store's security video apparently shoplifting medications from the store on one of her days off. The store manager alerted the store's loss prevention manager, Robert Marich.

Marich visited the store on a day Varga was working there, and escorted her into the manager's office. According to Marich, defendant was nervous. Although the court's decision did not mention these factors, based on the hearing record there appears to be no dispute that at the time, defendant was eighteen years old, pregnant, and a heroin addict. Marich admitted telling Varga that "you can leave here on your own or you can walk out in handcuffs." He also advised her that "everything will be alright, we just need to take care of this before it gets too out of hand," and "[t]his isn't a big deal at this time." Defendant then gave Marich a written statement admitting that she and her boyfriend had shoplifted pills from the store and resold them to get money to buy heroin. Marich admitted that if he had been in defendant's situation, he too would have given a statement to avoid walking out in handcuffs. After obtaining Varga's statement, Marich alerted the police, who also took a statement from defendant.

Citing State v. Kelly, 61 N.J. 283 (1972), the trial judge concluded that "it is clear that the confession made by the defendant at [the store] was not freely or voluntarily given and was the product of coercion." He based this conclusion on Marich's statement to defendant that she would walk out in handcuffs if she did not cooperate, combined with his reassurances about the incident not being "a big deal" and that "everything will be alright" if defendant cooperated. The judge concluded that because defendant was an employee, "under the direct control and supervision of the interrogator, . . . her free will could have easily have been overborne" by his tactics.

The issue of voluntariness must be considered on a case by case basis in light of the totality of the circumstances:

Every case must turn on its particular facts. In determining the issue of voluntariness, and whether a suspect's will has been overborne, a court should assess the totality of all the surrounding circumstances. It should consider the characteristics of the suspect and the details of the interrogation. Some of the relevant factors include the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved. A suspect's previous encounters with the law has been mentioned as an additional relevant factor.

[State v. Miller, 76 N.J. 392, 402 (1978) (citations omitted).]

While some degree of psychological coercion may vitiate a confession, a court must carefully review all of the surrounding circumstances:

[T]he State must demonstrate the voluntariness of a confession beyond a reasonable doubt. An involuntary confession can result from physical or psychological coercion. However, unlike the use of physical coercion, use of psychologically oriented interrogation techniques is not inherently coercive. Confessions are not voluntary if derived from "very substantial" psychological pressures that overbear the suspect's will. In determining whether a defendant's will was overborne, the totality of the circumstances must be examined, "including both the characteristics of the defendant and the nature of the interrogation." Relevant factors 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."

[State v. Cook, 179 N.J. 533, 562-63 (2004) (citations omitted).]

See also State v. Knight, 183 N.J. 449, 462-63 (2005); State v. Pillar, 359 N.J. Super. 249, 268-73 (App. Div.), certif. denied, 177 N.J. 572 (2003).

We have reviewed the entire record, mindful that the trial judge is in the best position to weigh the evidence, since he observed the testimony and demeanor of the witnesses. We find this a close case. We cannot determine from the court's opinion whether the trial court considered case law beyond Kelly, however, the court did not completely analyze all relevant factors using the totality of the circumstances test. We do not know, for example, whether Marich's demeanor was a factor (e.g. whether he presented an intimidating persona), or how consideration of defendant's age, life circumstances, and any prior encounters with the law might affect the decision. Consequently, we remand for reconsideration under the totality of the circumstances test. We intimate no view as to the outcome on reconsideration. We do not retain jurisdiction.

 
Remanded.

(continued)

(continued)

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A-3595-06T5

September 25, 2007