STATE OF NEW JERSEY v. GEORGE J. CARTY, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3117-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GEORGE J. CARTY, III,

Defendant-Respondent.

___________________________________

December 23, 2010

 

Argued November 3, 2010 - Decided

 

Before Judges Carchman and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-10-00814.

 

J. Vincent Molitor, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).

 

David A. Stefankiewicz argued the cause for respondent (Stefankiewicz & Barnes, LLC, attorneys; Mr. Stefankiewicz, of counsel and on the brief).

 

PER CURIAM

By leave granted, the State appeals the suppression of certain statements made by defendant George J. Carty, III, during a police interrogation that took place in the State of West Virginia. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

On July 27, 1982, the body of John Attenborough was discovered on an unpaved roadway in a partially completed residential development in Lower Township, New Jersey. Carty, who had been Attenborough s co-worker and "drinking buddy, was considered a potential suspect at the time. Carty was interviewed and gave a statement to the police that is not contained in the record.

In the statement, Carty informed the police that, approximately a month before his death, Attenborough tried to initiate a consensual sexual encounter with him. According to Carty, he refused Attenborough's advances and the encounter ended peacefully.

The police asked Carty to undergo a polygraph test. Although he initially agreed, Carty later declined because of his concerns about the test's accuracy and false positives. The investigation continued, but no indictments or charges followed.

In late 2006, the Cape May Prosecutor's Office assigned Detective Edward W. Musick and Agent Francis P. Majane to reopen the investigation of Attenborough's death. They decided to travel to West Virginia for an unannounced, in-person interview of Carty, who had moved there in 1992. In March 2007, Musick contacted the West Virginia State Police to ascertain whether they could supply an interview room and someone to assist in administering a polygraph examination. Musick was referred to State Police Sergeant James Merrill, who agreed to be available on March 19.

Musick and Majane drove to West Virginia on March 19. At approximately 3:30 p.m., they went to Carty's apartment, introduced themselves, and told Carty they wanted to discuss his earlier statement about Attenborough's murder. Carty invited them in. After a brief discussion, they asked Carty to accompany them to the West Virginia State Police Barrracks in Morgantown.

When they arrived at the barracks, Musick, Majane, and Carty entered a secured area, and were escorted to an interrogation room on the second floor. Majane went to start the video recording equipment. Musick remained in the room and read Carty his Miranda1 rights from a card, pausing after each clause and asking Carty if he understood his rights. Musick then gave the card to Carty. He read and signed it. The video recording began just after Musick concluded the Miranda warning, at approximately 4:02 p.m.

After gathering some preliminary information, Musick and Majane began their interrogation. They asked Carty what he knew about Attenborough's death, using his 1982 statement for comparison. Majane asked Carty to explain the unwelcome sexual advance mentioned in the 1982 statement.

After further questioning, the following exchange ensued:

Q. Did you assault John Attenborogh?

 

A. No. No.

 

Q. Are you willing to take a polygraph exam?

 

A. I think I could, yeah.

 

Q. Right now?

 

A. Put me on it.

 

Q. Okay. That will be arranged. Are you willing to give us DNA samples?

 

 

. . . .

 

Q. -- will you give [a DNA sample] to us voluntarily? You will?

 

A. Yeah. Sure.

 

Q. Okay. And you're willing to take a polygraph?

 

Carty gave no response to the last question. After further discussion of DNA samples allegedly found at the crime scene and the accuracy of testing after such a long period, the issue of the polygraph was raised again.

 

Q. We don't know anything about (indiscernible). We're willing to take your sample from a DNA right now.

 

A. You can take the swab, but you will -- No polygraph 'cause DNA is all you need.

 

Q. Okay. But --

 

Q. [Musick] Well, no. No --

 

Q. [Majane] A tool to help us --

 

Q. [Musick] A tool to help us to even clear you more, a polygraph would be perfect.

 

Q. [Majane] We'll do a polygraph examine.

 

. . . .

 

Q. [Majane] And if you're willing to take it, we'll give it to you right now.

 

A. What time is it?

 

Q. [Musick] Basically, listen --

 

Q. [Majane] It's 4:45.

 

Q. [Musick] It'll return back to what you said before.

 

A. Because I have to be somewhere at 6:30 and I have to shower before I do it.

 

Q. [Majane] Okay.

 

Q. [Musick] Where do you got to be at 6:30?

 

A. I got to be at Chestnut Ridge Hospital for a session.

 

Q. [Musick] What kind of session?

 

A. It's a -- it's family origin stuff. It's about -- about adult children of alcoholics.

 

Q. [Musick] This is a pretty, pretty important situation we're dealing with here, George, you know what I'm saying?

 

A. I know, but --

 

Q. [Musick] Listen, I'm sure --

 

A. -- but you don't think my stuff's important?

 

Q. [Musick] Absolutely. Absolutely I think your stuff is important, but we got one shot at this. We can't -- We're not coming back here.

 

A. Well, do it now and get it over with, will you, please.

 

Q. [Musick] Okay.

 

That exchange took place at about 4:45 p.m., approximately forty-five minutes after the interrogation began.

At 4:48 p.m., two DNA swabs were taken. The interrogation by Musick and Majane continued until Merrill arrived to administer the polygraph test.

Merrill re-administered Miranda warnings and asked Carty to sign another Miranda waiver. However, as the State concedes, Merrill's administration of the Miranda rights was defective. Merrill also requested that Carty sign a "polygraph release form" which stated, in part:

a polygraph examination consists of three phases. During the first phase is a pre-test interview. Basically, case facts and other information will be discussed to prepare me for the second phase, which is the examination. . . . [and d]uring the third phase, which is a post-test interview, the examiner will discuss the results of the examination and/or attempt to resolve any issues discovered during the polygraph process.

 

Carty signed the Miranda and polygraph forms.

Prior to the administration of the test, Merrill began the pre-test interview by asking Carty about his medical and family history. Merrill then started asking Carty about the factual circumstances surrounding the crime, as well as "the realm of possibilities . . . hypotheticals and possibilities" in his "mind." Initially, Carty rejected those hypothetical statements, stating that there had been "no physical altercation" and "no physical contact at all . . . [z]ip."

After the pre-test interview, Merrill attached Carty to the polygraph machine and asked ten questions, repeating the ten-question battery three times. After scoring the results, Merrill told Carty that there were four "hot" questions. The hot questions were: "Do you know for sure who caused the death of John? . . . Did you plan with anyone to cause the death of John? . . . Did you physically cause the death of John? . . . Were you physically present when John died?" Merrill told Carty that he had "passed" the test with respect to the first three questions, but that the question about whether he was "physically present" was "causing some trouble of the autonomic nervous system."

Merrill then began the post-test interrogation. Carty continued to deny being present at Attenborough's death, noting that as an alcoholic he had frequent blackouts. Merrill told him:

[Blackouts are] something I went to college for. And I actually done one of my thesis on paradoxes and on blackouts . . . . And so -- I can safely assure that -- You know, you talk about possibilities and I talked to you about possibilities. . . . [A] lot of different things could -- could or may have happened, okay?

 

In fact, Merrill had no college degree at the time, and had not done a thesis on blackouts.2

Merrill continued to use hypothetical questions premised on Carty's presence when Attenborough died. Carty generally responded to Merrill's hypotheticals with vague responses, such as: "Okay . . . Umhmm . . . All right . . . ." Carty asserted that he "never struck him." When Merrill asked him what was "going through your mind," Carty responded "I'm thinking to myself was I there? No."

As the post-test interrogation continued, Merrill continued to press Carty, asking him to "explore the possibility" that "there's a blackout, you consent to either you providing oral sex to him or he providing oral sex to you." Carty responded:

A. Can you just give me a yes/no question, did I have some kind of sexual exchange with John?

Q. Right. Okay.

A. I would say no, . . . because I don't think we did.

 

Q. Okay . . . I think . . . there's a high likelihood that there probably was . . . And I think that you know that, okay?

 

A. I don't . . . .

 

. . . .

 

Q. . . . I'm asking you to try to go back there so we can talk about that issue, okay?

 

A. I can't remember us ever having any interchange.

 

Q. Okay. Buy you -- there's a possibility, okay? There's that --

 

A. Right.

 

Q. . . . Anything's possible okay? Something in the back of your mind tell you that, okay? What is that to make an inference to that, okay? There's something there, okay? What's that inference? That's what I'm trying to hit at, okay?

 

As the interrogation continued, Merrill asked Carty to "tell me what you're seeing," to "visualize," and "let it go freely." Carty began narrating, while Merrill suggested possible directions for the narration to take:

Q. You're there in the car.

 

A. He's ugly.

 

Q. Okay.

 

A. I really don t -- I don't want to do --

 

Q. Okay.

 

A. -- anything with this guy.

 

Q. Okay. Is he forcing himself on you?

 

A. No.

 

. . . .

 

Q. Okay. Talk to me. Do you remember leaving? You remember running?

 

A. Actually -- For some reason I keep thinking he drove me back to my car?

 

Q. No. You're thinking about running now. . . .

 

A. Okay, then.

 

. . . .

 

Q. . . . Keep visualizing. Tell me what you're visualizing here, okay? What's he doing?

 

A. I mean could he be coming after me?

 

Q. Yes. What's he doing?

 

A. Pushing me up against the car.

 

Q. Okay. You remember that?

 

A. No, I don't. I think my mind is making it up . . . because you want something.

 

Q. No . . . . He's pushing you up against the car, okay?

 

. . . .

 

Q. Okay. Now listen. Something happens right there before you take off running, okay? I want you to focus on that, okay? . . . .

 

A. I kick him in the legs.

 

. . . .

 

Q. Okay. Do you kick him anywhere else, okay? Think about this. You're . . . now trying to defend yourself, okay?

 

. . . .

A. I kick him in the butt.

 

Q. Okay. You remember kicking him in the butt now.

 

. . . .

 

Q. Okay. Where else do you kick him at? Where else do you kick him at?

 

. . . .

A. That's all I can remember.

 

. . . .

Q. Okay. Think about his head. Do you kick him in the head?

 

A. I can't say I kicked him in the head.

 

Q. Okay. Think. I want you to think about that, okay? Did you kick him in the head? He's got to be running his mouth. Regardless, he's still running his mouth. If he's making these advances --

 

. . . .

 

A. I'm making all this up.

 

. . . .

 

A. None of it seems real. I don't think any of this happened.

 

After extensive role-playing and visualization, Merrill left the interrogation to discuss Carty's responses with Musick and Majane. When Merrill returned, Carty again stated: "I'm just totally making this shit up. . . '[c]ause I was not there." After more discussion, Carty said, "I think it's time for them to just take me to court and see if they can prove their case, . . . because I'm going to get a lawyer now. I mean . . . you have forced my hand." Merrill nevertheless persisted in continuing the interrogation.

Eventually, Merrill left the interrogation room. Musick and Majane returned and sought to continue their interrogation. Carty twice stated: "I probably ought to get a lawyer." He then said: "You guys can ask me a few more questions." However, when asked to sign a "Miranda Waiver of Reassertion," Carty again changed his mind, stating: "No. No, forget it. No more. I'm getting a lawyer." The interrogation ended at 9:00 p.m., approximately five hours after it had begun. Musick and Majane drove Carty back to his home.

During the five hour interview, Carty was told that he could leave on three occasions. The first two were relatively early in the process and the third was close to the end. Carty was given two bathroom breaks during the five hour interview.

 

B.

On June 3, 2008, a Cape May County grand jury charged Carty with murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2). Carty filed a motion to suppress evidence and dismiss the indictment. An evidentiary hearing was held in September 2009, at which Musick, Majane, and Merrill testified. The motion judge dismissed the indictment on October 7, 2009, based on his conclusion that the State had not made a balanced presentation on the polygraph results to the grand jury. A written order followed on October 28, 2009. The State presented the case to the grand jury a second time, and a new indictment for murder was returned on October 20, 2009.

On November 4, 2009, Carty again moved to exclude his March 19, 2007 statement. In December 2009, the motion judge granted the motion to suppress, but only as it related to statements made after Carty told Musick and Majane he did not want to take the polygraph examination and Merrill made the defective administration of Miranda rights.

The motion judge determined that the first Miranda warnings, those administered by Musick and Majane, were appropriate. He also concluded that Carty's interrogation was custodial under "the totality of the circumstances." The State has not challenged that determination on appeal.

The judge found that, although Carty had initially agreed to participate in a polygraph, he clearly revoked his agreement after the discussion of the DNA evidence and his willingness to give the police a DNA sample.

In direct response to which Carty answers, quote, "No polygraph, because DNA is all you need" . . . . Musick responded, quote, "tool to help us even clear you more; a polygraph would be perfect" . . . . Quote, "Do it now and get it over with. Will you, please?" . . . . In response to which the Defendant references, excuse me, quote, "seven detoxes, three rehabs, and a state mental hospital" . . . . That dialogue, in this court's view, constitutes a revocation of waiver, at least partially, because it is an affirmative expression of the Defendant's unwillingness, indeed, refusal, as in, quote, "No" means no, to submit to a polygraph examination.

 

The judge then outlined Musick and Majane's efforts to change Carty's mind about the polygraph.

The officers at that time did not accept that. They chimed right in and the proof is in the viewing of the video, they did not accept and their language suggested strongly, actually declared, that they were not about to accept that refusal to submit to a polygraph. And by the way, the prospect of the polygraph was never raised until just seconds prior. Stated otherwise, it was not referenced in the administration of Miranda.

 

The judge then turned to the deficiencies of Merrill's administration of the Miranda warnings.

In any event, Sergeant Merrill is then brought into the room. The Defendant has been assured he will be out in time to attend his particular party. And Detective Merrill begins his initial dialogue with the Defendant portraying himself as a neutral party, someone taking no one's side and, indeed, indicates to the Defendant, quote, "I want to say you're a grand guy, or he's a grand guy, he didn't do it" . . . . At that point he confirms that the Defendant has been told that he's a suspect and attempts to administer Miranda, this in Exhibit S-13. And again, I characterize that attempted administration as a sort of colloquial drive by administration; got a little bit of it right, a little bit of it wrong and a lot of it left out altogether. So, for the purposes of this record, any attempt at administration of Miranda by Merrill was woefully deficient.

 

The judge next concluded that Merrill's efforts to obtain a waiver for the polygraph examination were defective.

I also find that the attempted administration of the polygraph release form was administered in the same way. It was not read. It was referenced. It was generally characterized, not all of the content of S-14 was even referenced. At no point in time did Merrill ask the Defendant whether he understood Merrill's administration of Miranda as to individual rights or as to the individual rights and obligations on the polygraph release form, which is S-14. And indeed, S-14 not only misstates Miranda in its entirety, but it also advises the Defendant that by signing the document, he is agreeing to hold harmless not just Merrill, but the West Virginia State Police, from any and all liability of any kind whatsoever. Again, the court need not strain with any determination as to the enforceability or merit of such a document in the State of New Jersey, but the record is clear that at the point in time the Defendant was not represented. Yet, the fashion in which Merrill administered or sought to administer Miranda and sought to secure the execution of the polygraph release, in all due respect, was roughshod and insufficient and this court finds could only have left this Defendant more confused, not only as to the inconsistency of Miranda version two as obfuscated by polygraph release. So, while the administration of Miranda by Musick this court finds to have been appropriate and comprehensive and clear, the court has no doubt but that the attempted administration of Miranda, the second version, and the polygraph release by Merrill could have only left this Defendant, or any other layperson, not clear at all as to what his or her rights and obligations were and potential, even possible consequences of proceeding with what he or she was asking to do -- or being asked to do at this particular point in time.

 

With respect to the administration of the polygraph test and Merrill's follow-up interrogation, the judge noted Merrill's misrepresentations concerning his role and educational background and his use of "hypotheticals" and "possibilities." He outlined the nature of Carty's responses to some of Merrill's questions, which included denials of his presence at or involvement in Attenborough's death. However, the judge also outlined "the portion of the statement that the State asserts constitutes factual circumstances that match, to some extent, if not identically, the circumstances attendant to the scene of the death of Attenborough."

The judge then outlined his legal conclusions. "That's this court's reading of that particular record. That being the case, the question then becomes, as to Miranda, the legal significance of the defendant's change of heart" about taking a polygraph test. The judge focused on whether Carty's statement declining to submit to the polygraph revoked his earlier waiver of his Miranda rights. After citing State v. McCloskey, 90 N.J. 18, 25 (1982), for the proposition that "courts are to indulge every reasonable presumption against waiver of fundamental constitutional rights, such as the right to remain silent," the judge found that Carty's statement "No polygraph, because DNA is all you need" constituted "a clear and unequivocal partial revocation of his prior waiver of Miranda."

Because Carty's unequivocal partial revocation was not accepted by the interrogating officers and was "rejected out of hand by law enforcement," despite "the affirmative duty on the part of law enforcement to make careful inquiry, through narrowly crafted questioning, to ascertain exactly what the position of the defendant here is," the judge concluded that the inquiry required of the officers "did not occur to any extent here."

The judge also concluded that the statements "which flowed from the polygraph examination" occurred as a result of the officers' disregard of Carty's "clear and unequivocal partial revocation of his prior waiver" and were therefore "tainted and defectively so." He further concluded that, because the polygraph test was administered in violation of Miranda, "the content of that statement must be suppressed due to that violation." He declined, however, to suppress the portion of the interrogation that occurred prior to the polygraph examination.

An order followed on January 4, 2010. The judge granted the State's request for a stay so it could seek leave to appeal, which we granted.

II.

On appeal, the State argues that the motion judge erred in finding that Carty had invoked his right to remain silent when he said: "No polygraph, 'cause DNA is all you need.'" As a consequence, the State argues, the judge also erred in suppressing the statements Carty made thereafter.

A.

 

The Supreme Court has explained the standard of review applicable with respect to a trial court's fact-finding on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

 

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

However, our review of the judge's legal conclusions is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div.) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. granted, 203 N.J. 95 (2010).

In this case, there was a video recording of Carty's interrogation. The recording was viewed by the motion judge, and has been made available to us for our review. In Elders, the Supreme Court held that the availability of a videotape does not "extinguish[] the deference owed to a trial court's findings." 192 N.J. at 244. The Court noted that

In State v. Chapman, 332 N.J. Super. 452, 459-60 (App. Div. 2000), the Appellate Division properly followed the deferential standard set forth in Johnson in a vehicular consent search case involving a videotape. In concluding that the voluntariness of the consent was supported by substantial, credible evidence on the record, the panel noted that the trial court had the benefit not only of viewing the videotape, but also of observing the testimony of witnesses. Id. at 459-60.

[Elders, supra, 192 N.J. at 245.]

In State v. Baum, 199 N.J. 407, 423 n.4 (2009), the Court noted that we did not overstep our bounds by undertaking an independent review of a videotaped traffic stop because "the panel's review of the videotape was not intended to and did not lead it to substitute its view of the facts for that of the motion judge." Instead, "its review assisted it in its evaluation of the motion court's application of legal principles to the essentially undisputed facts it had recited." Ibid.

In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations omitted), certif. denied, 178 N.J. 35 (2003). We will not engage in an independent assessment of the evidence as if we were the court of first instance, State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997), but we instead defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1621, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's right to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, could not reasonably be viewed as invoking the right to remain silent, this requirement is satisfied and the police may continue their questioning. Id. at 590.

A trial court will admit a confession into evidence only if the State has proven beyond a reasonable doubt that, based on the totality of the circumstances, the suspect's waiver of those rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42. The court must specifically consider the defendant's characteristics and the nature of the interrogation, and may include in its consideration the defendant's age, education, intelligence, length of detention, advice concerning constitutional rights, whether questioning was repeated and prolonged, and whether physical punishment or mental exhaustion were involved. SeeState v. Galloway, 133 N.J. 631, 654 (1993).

Courts analyze whether a confession is the result of police coercion by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962).

A suspect's confession is considered involuntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is the product of an essentially free and unconstrained choice where the defendant's will has not been "'overborne and his capacity for self-determination critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate the use of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

Police must also "scrupulously honor" a suspect's assertion of the right against self-incrimination. Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975). The "failure scrupulously to honor a previously-invoked right to silence renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation." State v. Hartley, 103 N.J. 252, 261 (1986).

In New Jersey, the police have an affirmative duty to clarify any ambiguous responses concerning a suspect's invocation or waiver of his rights. State in re A.S., 409 N.J. Super. 99, 116-17 (App. Div. 2009), rev'd on other grounds, 203 N.J. 131 (2010) (holding that although defendant never directly requested that questioning cease, evident reluctance and long silences suggested an equivocal invocation, requiring police clarification). See also State v. Kennedy, 97 N.J. 278, 288 (1984) ("[A] prosecutor must diligently honor a defendant's request -- however ambiguous -- to terminate interrogation . . . ."); contra Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (holding that the federal rule requires the invocation to be clear and unambiguous).

If ambiguity exists, the police may not use trickery or deception as a means of persuading a custodial suspect to retract an equivocal invocation of rights. State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.), certif. denied, 177 N.J. 572 (2003) (holding that the officer had a duty to clarify an ambiguous invocation rather than misleading defendant); see also State v. Dickens, 192 N.J. Super. 290 (App. Div. 1983), certif. denied, 97 N.J. 697 (1984). After "an equivocal invocation" takes place, the invocation must be "clarified before questioning c[an] take place." State v. Chew, 150 N.J. 30, 63 (1997), cert. denied, 528 U.S. 1052 (1999).

When reviewing an ambiguous assertion, "[t]here is no distinction . . . in analyzing the consequences of failing to honor scrupulously an assertion of the right to remain silent and a failure to honor a request for counsel." Burno-Taylor, supra, 400 N.J. Super. at 607 n.2. When determining whether there has been an assertion, the court must consider "[n]ot merely the words spoken, however, but the full context in which they were spoken." State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005), certif. dismissed, 189 N.J. 420 (2007) (emphasis added). See also State v. Brooks, 309 N.J. Super. 43, 55 (App. Div.), certif. denied, 156 N.J. 386 (1998).

B.

In this case, the following are uncontested: (1) the Miranda warnings were correctly given at the start of the interrogation, at which time Carty voluntarily waived those rights and agreed to answer questions; (2) Carty was subject to a custodial interrogation; and (3) the second Miranda administration, performed by Merrill, was flawed and ineffective. The State's appeal focuses on whether the motion judge correctly determined that Carty invoked his right to remain silent at 4:45 p.m. on March 19, when he refused to take the polygraph. The State argues that he did not invoke his Miranda rights and, consequently, that the second, admittedly defective administration of Miranda by Merrill was unnecessary and harmless.

The polygraph was an integral part of Musick and Majane's overall plan for Carty's interrogation, and was the vehicle for the continuation of his interrogation once their initial questioning had been completed without any admission of guilt. In addition, questions about Attenborough's murder were an integral part of the polygraph examination, as explained by Merrill before he started the examination.

The motion judge's finding that Carty revoked his initial agreement to undergo the polygraph examination is fully supported by the record. In fact, Carty did exactly the same thing during the initial investigation following the murder, as Musick and Majane were aware.

Because continuation of the interrogation and the administering of the polygraph were inextricably intertwined and provided "the full context in which [Carty's words] were spoken," Roman, supra, 382, N.J. Super. at 64, we find support in the record for the judge's interpretation of Carty's refusal to take the polygraph as a partial retraction of his willingness to continue the interrogation. A.S., supra, 409 N.J. Super. at 116-17. The judge's further finding that Musick and Majane unduly pressured Carty into changing his mind, rather than respecting his decision or seeking to clarify it, is also supported by the record. As a result, we find that the record supports the trial judge's conclusion that a second administration of Miranda rights was warranted.

At that point, Merrill took over the interrogation process. As found by the judge and conceded by the State, Merrill performed a defective administration of Carty's Miranda rights. He was also ineffective in explaining and obtaining the polygraph waiver. Under the totality of the circumstances presented by this record and in light of the judge's findings, we agree with the judge that that the defective re-administration of the Miranda rights tainted the subsequent statements by Carty, and would have done so even if the re-administration were unnecessary.

Giving appropriate deference to the motion judge's findings and "feel of the case," we cannot say that the judge erred in his conclusion that the State failed in its burden to demonstrate that Carty's subsequent statements were given freely and voluntarily with a full understanding and waiver of his Miranda rights. See Patton, supra, 362 N.J. Super. at 43. Consequently, we affirm the order on appeal, essentially for the reasons expressed by Judge Raymond A. Batten in his oral opinion.

Affirmed.

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

2 Throughout the interrogation, Merrill professed that he was either a neutral party in the investigation or attempting to help Carty. His statements included assertions such as: "[M]y goal is to get you to pass this exam," and "[l]ike I said, my role is to be very neutral and impartial, okay? I'm not taking the detectives' side. I'm not taking your side. Just basically coming in here as a neutral party and get this issue resolved, okay?"