STATE OF NEW JERSEY v. ALLEN HENRY MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3984-07t43984-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ALLEN HENRY MILLER,

Defendant-Respondent.

________________________________________________________________

 

Argued October 2, 2008 - Decided

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1652.

Jack J. Lipari, Assistant Prosecutor, argued the cause for appellant (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, on the brief).

Eric R. Shenkus, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Shenkus, on the brief).

PER CURIAM

By leave granted, the State appeals from orders that suppressed two statements by defendant on grounds of a Miranda violation. As to the first of the two, the State maintains that despite the imperfect administration of Miranda warnings, the totality of the circumstances established that defendant waived his right to remain silent and the judge erred by concluding otherwise. As to defendant's second statement -- given after a fresh set of complete warnings and an express waiver by defendant of his right to remain silent -- the State asserts that the judge erred by concluding that the conduct in question was an instance of the "question-first, warn-later" interrogation technique the Court prohibited in State v. O'Neill, 193 N.J. 148, 180 (2007). We disagree with the first argument and therefore affirm the order of November 28, 2007. We agree with the second and reverse the order of March 14, 2008.

I.

In Ventnor, on July 24, 2006, a vehicle struck and severely injured a pedestrian. The operator fled on foot. Subsequent investigation, the facts of which are not pertinent to this appeal, caused Ventnor police to take defendant into custody and transport him to headquarters, where defendant took, and failed, a sobriety test. Officer Joseph Fussner then charged defendant with driving while intoxicated, N.J.S.A. 39:4-50.

Immediately after the arrest, Fussner informed defendant of his Miranda rights, using the laminated card he kept in his pocket; however, Fussner read only paragraphs one through six, choosing not to read the seventh paragraph because he did not intend to question defendant at that time. The seventh paragraph, the explicit waiver question that Fussner did not read, provides, "Having these rights in mind, do you wish to talk to us now?"

Fussner testified that when he asked defendant whether he understood the rights contained in paragraphs one through six, defendant "stated yes, he did." Fussner then presented defendant with a photocopy of a Miranda card, which specifies that defendant was advised of his rights, understood them, and agreed to waive them. When Fussner asked defendant to sign the card, defendant stated that he would not sign anything at that time; however, defendant did not ask any questions concerning those rights, request an attorney, or state that he did not wish to make a statement. This exchange occurred at 12:47 p.m. on July 24, 2006.

A superior officer then directed Fussner to obtain a blood kit and transport defendant to Shore Memorial Hospital, where defendant's blood would be drawn. Prior to the trip to the hospital, Fussner advised Lt. Michael Miller, also of the Ventnor police department, that defendant had been informed of his Miranda rights. Miller accompanied Fussner in Fussner's patrol vehicle while the two drove defendant to the hospital. No questioning occurred en route.

The record is unclear as to when the three arrived at the hospital. Fussner testified they arrived a little before 2:00 p.m., while Miller testified it was somewhere between 12:15 p.m. and 1:15 p.m. on July 24, 2006. Upon arriving at the hospital, the three entered a small room to await the blood draw. Fussner exited to speak with members of the Prosecutor's office, leaving Miller in the room with defendant. Miller testified that in the twenty minutes that followed, defendant made an oral statement. That statement is the first of the two statements that are the subject of this appeal.

According to Miller's testimony, while he and defendant were in that room, he made no effort to advise defendant of his Miranda rights because he "had been advised that [defendant] had already been Mirandized." According to Miller, when the two entered the room, Miller was silent, but at some point defendant broke the silence, stating he had been merely a passenger in the vehicle and was asleep when the crash occurred. Defendant maintained that the driver fled the scene. Miller responded by telling defendant that he did not believe defendant was telling the truth. Defendant then asked Miller whether the victim had survived. Miller answered in the affirmative, but again confronted defendant, telling defendant he believed he was lying when he insisted he was not the driver.

According to Miller, defendant then said that "he did not mean to hurt anyone" and "was not even suppose[d] to be driving," and also acknowledged he was the driver, and had fallen asleep at the wheel after having consumed two beers. According to Miller, this conversation occurred during the twenty minutes that the two were alone in the room waiting for the blood draw. Miller testified that although defendant's motor skills were impaired, defendant's capacity to understand his Miranda rights and engage in a coherent conversation was not impaired.

Shortly thereafter, a nurse escorted the two to a hospital room, where forty-five minutes later defendant's blood was drawn. According to Miller, he and defendant left the hospital at approximately 2:25 p.m. and began the fifteen-minute drive back to Ventnor police headquarters, where an Alcotest was administered. The Alcotest and the ensuing formal booking consumed nearly an hour. At 3:45 p.m., defendant gave the taped statement that is also the subject of this appeal.

The tape reveals that Miller advised defendant of his rights by administering a complete set of Miranda warnings. On the tape, defendant acknowledged that he understood those rights and wished to give a statement. Miller did not ask defendant to sign a Miranda rights card. In his nine-minute taped statement, defendant admitted that after drinking beer and shots at clubs, he was up all night until falling asleep at the wheel of his vehicle at 11:55 a.m. the next morning. Miller testified that at no time while defendant was at Ventnor police headquarters before or during that taped statement did defendant ever say he did not understand his rights, that he wanted an attorney, or that he would not give a statement.

In an oral decision rendered on November 28, 2007, the judge suppressed the statement defendant gave at the hospital. He found that Fussner had told Miller that defendant refused to sign the Miranda waiver of rights form, and that Miller, aware of that refusal, never asked defendant if he would waive his right to remain silent before questioning defendant at the hospital. Miller "prodd[ed] [defendant] . . . to come clean," which the judge found to be "the functional equivalent" of interrogation. In light of those facts, the judge concluded that the State had failed to satisfy its heavy burden of establishing beyond a reasonable doubt that defendant's statement at the hospital was the product of a knowing and voluntary waiver of his right to remain silent. Consequently, the judge suppressed the statement defendant made at the hospital.

In contrast, the judge rebuffed defendant's effort to suppress the statement he made later that day at Ventnor police headquarters. He held that "the tape recorded statements . . . were made after new Miranda warnings were given and he waived them on tape and gave statements and answered questions." Consequently, the judge concluded that defendant's taped statement would be admissible at trial because defendant "knowingly, intelligently and voluntarily waived any rights that he had." Neither side sought interlocutory review of either of the oral rulings the judge made on November 28, 2007.

Three weeks later, on December 20, 2007, the Court decided O'Neill. The Court held that a two-stage "question-first, warn-later" interrogation technique violates a defendant's right against self-incrimination. O'Neill, supra, 193 N.J. at 185. There, this technique was employed by police while the defendant was in custody and, for a portion of the time, behind bars. Id. at 155. Only after ninety-five minutes of interrogation, during which the defendant made highly incriminating statements, did police finally issue Miranda warnings. Id. at 182. The defendant then repeated his incriminating statements on tape after the warnings were administered. Id. at 157. The Court suppressed the statement given after Miranda warnings were administered because, by then, the defendant had already made damning admissions, and the warnings were "futile." Id. at 183. Such conduct was found to be an impermissible "end run[] around Miranda." Id. at 185.

Shortly after O'Neill was decided, defendant moved for reconsideration of the earlier order denying his motion to suppress his taped statement at police headquarters. The State cross-moved for reconsideration of the order suppressing the statements defendant made at the hospital. At the March 12, 2008 hearing on those motions, the judge denied the State's cross-motion for reconsideration, holding defendant's statement to Miller at the hospital inadmissible. However, relying on O'Neill, he reconsidered his ruling concerning the post-warning taped statement and granted defendant's motion to suppress it. The judge reasoned:

I don't agree [with the State's position] that the facts of O'Neill are in[a]pposite because it was a three step tier instead of a two step tier, or because Miranda was given without waiver taking place at the time of the transport.

The "cat out of the bag" issue I think is one that has to be given great weight because the defendant absolutely understood and realized that he made some statements at the hospital that were in fact incriminating and was not being told that . . . . [w]e're [] going to go on tape . . . . you are not bound by the . . . answers you gave me. I'm going to ask you some of the same questions, some different questions, and I'm asking them to you anew.

. . . .

I believe when you look at the five [O'Neill] factors along with the totality of the circumstances and giving equal weight to all of the factors . . . there was a continuous situation going on without a big lack or time lapse in between, the defendant had obviously fresh in his mind what he had already said without formally waiving his rights at the hospital; was not told that we were going to ask you these questions anew . . . that under the case of O'Neill . . . it changes the situation of how I ruled previously . . . . I would have to say that reading O'Neill and all the "dicta" of O'Neill, and giving it the broad interpretation that I think is meant for it . . . the statements on tape . . . would have to be suppressed as well . . . .

We granted the State's motion for leave to appeal.

On appeal, the State argues that the judge erred when he suppressed the two statements and urges us to reverse the orders in question.

II.

On appeal, we will not disturb the factual findings of the trial court so long as "the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We turn first to the order suppressing defendant's oral statement at the hospital. The State argues that even without an explicit waiver by defendant of his right to remain silent, the totality of the circumstances establish waiver beyond a reasonable doubt. Specifically, the State points to the following circumstances:

At the time of his initial apprehension and during the ride to the police station, the defendant made numerous unsolicited statements to the police; Officer Fussner read the defendant his Miranda rights and the defendant clearly indicated that he understood them; defendant did not request an attorney, no[r] did he indicate in any way that he did not wish to answer questions; defendant was confident enough in his rights to refuse to sign the form proffered by Officer Fussner without even reading it; defendant initiated conversation with Lt. Miller at the hospital; . . . defendant was in possession of his faculties, was calm, and gave no evidence of being under stress or of being mistreated in any way; . . . defendant was re-advised of his "Miranda" rights; . . . defendant clearly stated to Lt. Miller and Inv. Hincks that he understood his rights and wished to waive them and give a statement.

Defendant, in turn, argues that these facts preclude a finding of waiver:

1) the [waiver] form presented to the defendant was illegible; 2) defendant never was verbally asked if he wanted to waive his rights; 3) defendant never stated "I will talk to you but I am not signing any form"; (4) the police, without commencing any questioning immediately following their deliberate decision not to ask defendant if he wished to waive his rights, transported defendant to a hospital to await an intravenous blood draw; and 5) left defendant in a room with a different officer, who, despite no previous inquiry by any officer, took no steps to ask defendant if he desired to waive his rights before questioning.

Miranda warnings "play an important role in enhancing and safeguarding our state law privilege [against self-incrimination] and Miranda is a strong force in the development of our decisional law." O'Neill, supra, 193 N.J. at 168. Accordingly, the following warnings must be given to an individual in police custody prior to interrogation:

"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation."

[Ibid. (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. at 726)].

Once proper Miranda warnings are given and a statement by a defendant has been elicited, in order for such statement to be admissible, the State must prove beyond a reasonable doubt that the defendant's waiver of the privilege against self-incrimination was knowing, intelligent, and voluntary. State v. Burno-Taylor, 400 N.J. Super. 581, 588 (App. Div. 2008). "At the root of the inquiry is whether a suspect's will has been overborne by police conduct." State v. Presha, 163 N.J. 304, 313 (2000).

We look to the totality of the circumstances of the alleged waiver to determine whether such waiver is voluntary. State v. Knight, 183 N.J 449, 462 (2005). An analysis of the nature of an alleged waiver must focus on the characteristics of the defendant, the nature of the interrogation, the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. Id. at 462-63.

In determining the sufficiency of an alleged waiver of a suspect's right against self-incrimination, we remain mindful that a defendant's failure to sign a written waiver does not preclude a finding of waiver. State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). However, "it is one factor to be considered." Burno-Taylor, supra, 400 N.J. Super. at 603.

We begin our analysis of the Knight factors by observing that the trial judge's findings of fact omitted a discussion of many of them. The judge made no findings on the "characteristics of the defendant," "the suspect's age, education and intelligence," the "length of detention," "whether questioning was repeated and prolonged in nature," and "whether physical punishment and mental exhaustion were involved." Instead, the judge focused on only two factors: 1) even though Miller knew defendant had not explicitly waived his right against self-incrimination, Miller nonetheless failed to obtain an explicit waiver of the privilege before proceeding; and 2) Miller "prodd[ed]" defendant to "come clean," telling him he was being deceptive.

By engaging in such a narrow analysis, the judge ignored several factors that could lend some support to the opposite conclusion. These factors are: 1) defendant's statements were made in the neutral setting of a hospital with nursing staff nearby rather than in the "police-dominated atmosphere" of a stationhouse "where the individual is 'cut off from the outside world,'" O'Neill, supra, 193 N.J. at 148 (quoting Miranda, supra, 383 U.S. at 445, 86 S. Ct. at 1612, 16 L.Ed. 2d at 707); 2) the entire exchange between Miller and defendant, before defendant made any statements, lasted merely twenty minutes; 3) it was defendant, not Miller, who initiated the conversation; 4) defendant had been fully advised of his rights by Fussner only three hours earlier and said he understood them; 5) defendant never asked for a lawyer or said he wanted to stop the questioning; and 6) no physical punishment or isolation was involved, although some degree of fatigue likely existed.

We conclude that the judge should have considered these additional factors as part of the "totality of the circumstances" analysis that Knight demands. Knight, supra, 183 N.J. at 462. Nonetheless, we are satisfied that the technique Miller used, repeatedly accusing defendant of lying, when combined with defendant's refusal to sign the waiver card and Miller's failure to ensure that defendant was willing to waive his right to remain silent before "prodding" him as he did, is ultimately incompatible with a voluntary and knowing waiver, despite the other evidence in the record that we have discussed.

In so concluding, we rely heavily on one of the principles that informed our decision in Burno-Taylor: "even an ambiguous indication of a desire to remain silent is sufficient to require that questioning cease. If the police are reasonably uncertain whether the person is asserting the right to remain silent, they may only ask questions directed to resolving that uncertainty." Burno-Taylor, supra, 400 N.J. Super. at 590 (citations omitted). Here, we view defendant's pushing the Miranda rights card away and his refusal to sign it as the "ambiguous indication of a desire to remain silent" that we addressed in Burno-Taylor. Ibid.

As we observed there, and as the Court recognized in State v. Johnson, 120 N.J. 263, 281-82 (1990), once defendant pushed the Miranda rights card away, Miller had only one course available to him: cease asking defendant about the crime in question and confine the questioning to "resolving [the] uncertainty" of whether defendant had waived his right to remain silent. Burno-Taylor, supra, 400 N.J. Super. at 590. Having failed to ascertain that defendant waived the privilege, Miller was precluded from asking any further questions.

We are satisfied--based on the totality of the circumstances--that the State failed to prove defendant's voluntary waiver of the privilege beyond a reasonable doubt. We therefore affirm the order suppressing defendant's oral statements at the hospital.

III.

We now turn to whether the judge correctly concluded that defendant's taped statement at police headquarters was an instance of the "question-first, warn-later" interrogation technique that the Court condemned in O'Neill. O'Neill addresses the practice of police issuing Miranda warnings only after damning admissions have been extracted. O'Neill, supra, 193 N.J. at 179.

There, this technique was employed when the unwarned questioning began at 3:10 p.m. on the day in question while the defendant was locked up and behind bars. Id. at 155. After twenty minutes, the detectives moved the defendant to a detective's office where the question and incriminating statements continued. Id. at 156. Not until 4:45 p.m., by which time police had "extracted damning admissions," id. at 179, during ninety-five minutes of questioning, did detectives finally give the defendant Miranda warnings. Ibid. The defendant then completed his account of the "planned robbery" of the cab driver. Id. at 156-57. Thirty-five minutes after the warnings were given, at 5:20 p.m., at the detectives' request, the defendant gave a taped statement. Id. at 157. On the tape, the detectives advised the defendant of his Miranda rights and the defendant agreed again to talk. Ibid. The Court observed that the detective "began the questioning by cueing [the defendant] to his earlier unwarned interrogation: 'Michael before we started this tape we spoke about this incident where the cab driver was shot is that correct?'" Ibid. The defendant then repeated on tape many of the incriminating details he had provided to the detectives before being given the Miranda warnings. Ibid.

The Court began its analysis in O'Neill by recognizing that "[o]ne of the most fundamental rights protected by both the Federal Constitution and State law is the right against self-incrimination." Id. at 167. Indeed, "New Jersey's privilege against self-incrimination is so venerated and deeply rooted in this State's common law that it has been deemed unnecessary to include the privilege in our State Constitution." Id. at 176. To safeguard that right, an admission by a defendant will be suppressed if it is not preceded by an explanation of the privilege against self-incrimination and a knowing, voluntary and intelligent waiver of that right. Id. at 168.

The Court analyzed whether law enforcement's failure to advise the defendant that his admissions during the earlier unwarned interrogation could not be used against him so tainted the subsequent statement that the State should be barred from using it against him despite his express waiver--before the second statement was given--of his right to remain silent. Id. at 179-80.

The Court observed that because the defendant was never warned that his earlier unwarned and highly incriminating statements could not be used against him, "'it would have been unnatural to refuse to repeat at the second stage what had been said before.'" Id. at 182-83 (quoting Missouri v. Seibert, 542 U.S. 600, 617, 124 S. Ct. 2601, 2613, 159 L. Ed. 2d 643, 658 (2004)). "Without such an assurance, defendant might fairly have concluded that it would have been futile to keep silent after having made a damning admission." Id. at 183. The Court reasoned that because "the detectives gave Miranda warnings midstream and did not mention the inadmissibility of his prior incriminating statements, defendant lacked sufficient information needed to make a knowing, voluntary and intelligent waiver of the privilege." Ibid. The Court held that the "two-step interrogation technique" used by police there was "at odds with the basic principles of Miranda and our State law privilege." Id. at 185.

In so holding, the Court characterized the questioning technique as an "unbroken interrogation,", id. at 183, in which the Miranda warnings issued midstream were "rendered illusory because the detectives exploited defendant's admissions from the initial unwarned questioning, [thereby] undermining his ability to knowingly, voluntarily and intelligently waive the Miranda rights later given to him." Id. at 155. The Court suppressed the defendant's post-warning statements. Ibid.

Nonetheless, the Court stopped short of announcing a bright-line rule that would--regardless of the factual circumstances presented--bar the admission of an incriminating statement made after a two-stage interrogation. Id. at 181. The Court instead adopted a more nuanced approach:

Ultimately, the question is whether the belated giving of the Miranda rights to a suspect will serve as a firewall between the warned and unwarned statements. Stated differently, the test must be whether in the setting of a two-stage interrogation, the Miranda warnings gave the defendant a meaningful opportunity to exercise his rights.

[Id. at 180.]

The Court held that when making that determination, judges should consider "all relevant factors," including:

(1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning.

[Id. at 181].

We conclude that O'Neill is distinguishable. Here, defendant's earlier statement to police at the hospital was preceded by Fussner's Miranda warnings and by defendant's acknowledgment to Fussner that he understood those rights, whereas in O'Neill police extracted damning admissions long before giving the defendant any Miranda warnings. Id. at 182. Thus, O'Neill condemned the practice of securing admissions during an unwarned interrogation before administering a set of Miranda warnings, which were likely, by then, to be "futile." Id. at 183. Here, even though we have concluded that defendant did not waive the privilege before making statements at the hospital, Fussner had given him a full set of warnings earlier. Consequently, even though there was no waiver of the privilege before defendant made statements at the hospital, the instant matter involves the imperfect administration of the Miranda procedures and not the blatant failure to warn that the Court addressed in O'Neill. O'Neill is thus distinguishable.

Second, the evil that the Court sought to eliminate in O'Neill is not presented here. There, police had the defendant at the stationhouse, questioning him through jail bars for ninety minutes until he cracked under the pressure and confessed. Only then were Miranda warnings administered. This violation of the defendant's rights was exacerbated when on tape the officers began by repeating in a leading fashion the admissions the defendant had already made. Id. at 182. It was the Court's conclusion that defendant's right to remain silent and his free will had been overborne by the tactics police used. Id. at 184. That is not this case. Police here did not create the coercive atmosphere where the "two-step," id. at 180, interrogation technique used in O'Neill overcame defendant's will. Here, defendant's statements at the hospital came after a full set of warnings had been administered. This case thus does not present the pernicious practice that the Court sought to halt in O'Neill.

Viewed in that light, the trial court's extension of O'Neill to the facts here represents a misapplication of O'Neill's holding and an unwarranted extension of its rationale. Accordingly, we reverse the March 14, 2008 order that excluded the taped statement given at Ventnor police headquarters.

Affirmed in part, reversed in part and remanded.

 

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

Paragraphs one through six provide:

[1] You have the right to remain silent. [2] Anything you say can and will be used against you in a Court of law. [3] You have the right to talk to a lawyer and have him present with you while you're being questioned. [4] If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. [5] You can decide at any time to exercise these rights and not answer any questions or make any statements. [6] Do you understand each of these rights I have explained to you?

The order in question was not signed until January 8, 2008.

Because the record was silent on some of the Knight factors, namely the characteristics of defendant, his education and his intelligence, we do not fault the judge's failure to make findings on these issues.

(continued)

(continued)

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A-3984-07T4

October 29, 2008