STATEOF NEW JERSEY v. ELIJAH L. JOHNSON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5671-16T3

STATE OF NEW JERSEY,

              Plaintiff-Appellant,

v.

ELIJAH L. JOHNSON,

          Defendant-Respondent.
_________________________________

              Submitted February 1, 2018 – Decided February 20, 2018

              Before Judges Haas and Rothstadt.

              On appeal from an interlocutory order of
              Superior Court of New Jersey, Law Division,
              Atlantic County, Indictment No. 15-04-1199.

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for appellant (John J. Lafferty, IV,
              Assistant Prosecutor, of counsel and on the
              brief).

              Respondent has not filed a brief.

PER CURIAM

        By leave granted, the State appeals from the July 20, 2017

Law Division order granting defendant's motion to suppress a

recorded statement he gave to the police.                Having considered the
State's arguments in light of the record and applicable principles

of law, we reverse.

      The police arrested defendant as a suspect in an armed

robbery.   A detective later interrogated defendant at the Atlantic

County Justice Facility.   The interrogation was audio-recorded and

this recording was played at the suppression hearing.

      Prior to beginning the interrogation, the detective read

defendant his Miranda1 rights from a card used by his department

for this purpose.   Specifically, the detective advised defendant:

           [Detective]: Before we talk, I just gotta read
           you your Miranda rights, all right?

           You have the right to remain silent.

           Anything you say can and will be used against
           you in a court of law.

           You have the right to talk to a lawyer and
           have [him] with you while you're being
           questioned.

           If you cannot afford to hire a lawyer, one
           will be appointed to represent you before any
           questions if you wish.

           You can decide at any time to exercise these
           rights and not answer any questions or make
           any statements.

      At the suppression hearing, the detective testified that he

then continued to read from the card and advised defendant that


1
    Miranda v. Arizona, 
384 U.S. 436 (1966).


                                 2                          A-5671-16T3
he could waive these rights and make a statement.2    The detective

also stated that defendant signed the card.    However, after the

recording was played at the suppression hearing, the detective

realized that he had not read the "waiver portion" of the card

verbatim to defendant.   In addition, the detective stated that he

signed the card for defendant because defendant was handcuffed

during the interview.

     According to the recording, the following colloquy occurred

between the detective and defendant after the detective finished

reading him the Miranda rights:

          [Detective]:    Do   you    understand     those
          rights?

          [Defendant]: Yeah.

          [Detective]: Do you want to make a statement?

          [Defendant]: A statement?

          [Detective]: Yeah, do you want to tell me what
          happened?

          [Defendant]: Oh yeah, oh yeah.

          [Detective]: All right.

          [Defendant]: What do you want me to tell you?
          If I did it, I guess?



2
  This portion of the Miranda card stated: "I have read the above
statement of my rights and I understand each of those rights, and
having these rights in mind I waive them and willingly make a
statement."

                                  3                          A-5671-16T3
           [Detective]: Well, we'll just start with some
           background. [Audio indiscernible]. Just give
           me a timeline of what went on.

Defendant then made a statement concerning his role in the robbery.

      Thereafter,     a   grand   jury   charged       defendant   and   two   co-

defendants with first-degree armed robbery, 
N.J.S.A. 2C:15-1(b)

(count one); second-degree conspiracy to commit robbery, 
N.J.S.A.

2C:5-2 and 
N.J.S.A. 2C:15-1 (count two); second-degree unlawful

possession of a handgun without a permit to carry, 
N.J.S.A. 2C:39-

5(b)(1) (count three); second-degree possession of a weapon for

an unlawful purpose, 
N.J.S.A. 2C:39-4(a) (count four); and fourth-

degree aggravated assault with a firearm, 
N.J.S.A. 2C:12-1(b)(4)

(count five).       Defendant later filed a motion to suppress the

statement he gave to the detective.

      Following   a   hearing,3    the       trial    court   rendered   an    oral

decision granting defendant's motion.                The court found

           there   were   plenty   of   indications   of
           voluntariness in this. There were. And the
           [c]ourt was absolutely ready to note these in
           noting that there was an intelligent and
           voluntary and knowing statement by . . .
           defendant after having been advised of his
           Miranda rights. It's clear that he did so in
           a conversational manner.      He volunteered
           information. At times he laughed. He gave a
           lot of detail.




3
    The detective was the only witness at the suppression hearing.

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      However, the court ruled that because the detective did not

read the "waiver portion" of the Miranda card to defendant verbatim

and did not have him sign the card, defendant's statement had to

be suppressed.     This appeal followed.

      On appeal, the State contends that the trial court erred in

granting the suppression motion in the face of defendant's clear

waiver of Miranda rights after he acknowledged that he understood

these rights and wanted to make a statement.        We agree.

        In reviewing a trial court's decision on a motion to

suppress for an alleged violation of Miranda, we use a "searching

and   critical"   standard   of   review   to   protect   a   defendant's

constitutional rights.    State v. Maltese, 
222 N.J. 525, 543 (2015)

(quoting State v. Hreha, 
217 N.J. 368, 382 (2014)).           We defer to

a trial court's fact findings on a Miranda motion, if supported

by sufficient credible evidence. Hreha, 
217 N.J. at 381-82 (citing

State v. Johnson, 
42 N.J. 146, 161 (1964)).           Our deference is

required even where the court's "factfindings [are] based solely

on video or documentary evidence," such as recordings of custodial

interrogations by the police.      State v. S.S., 
229 N.J. 360, 380

(2017).    We do not, however, defer to a trial court's legal

conclusions, which we review de novo.      State v. Rockford, 
213 N.J.
 424, 440 (2013).



                                    5                             A-5671-16T3
      The familiar Miranda warnings are intended to combat the

inherent coerciveness of custodial interrogation.            State v. P.Z.,


152 N.J. 86, 101-02 (1997).        Under Miranda, before commencing a

police interrogation, the police must advise the suspect that

           he [or she] has the right to remain silent,
           that anything he [or she] says can be used
           against him [or her] in a court of law, that
           he [or she] has the right to the presence of
           an attorney, and that if he [or she] cannot
           afford an attorney one will be appointed for
           him [or her] prior to any questioning if he
           [or she] so desires.

           [Miranda, 
384 U.S.  at 479.]

The   warnings   are   designed   to   assure   that   the   waiver   of   the

fundamental right to remain silent is voluntary, knowing, and

intelligent.     Id. at 444.

      The State bears the burden to prove beyond a reasonable doubt

that the interrogating officer has complied with Miranda.               State

v. Yohnnson, 
204 N.J. 43, 59 (2010).        The trial court must examine

the totality of the circumstances.         State v. Adams, 
127 N.J. 438,

447-48 (1992).

      Contrary to the trial court's legal conclusion, a written

waiver is not required before a defendant may waive his or her

Miranda rights.    State v. Faucette, 
439 N.J. Super. 241, 262 (App.

Div. 2015).      Thus, a defendant's failure or refusal to sign a

waiver form does not preclude a finding of waiver based on the


                                       6                              A-5671-16T3
totality of the circumstances.         State v. Warmbrun, 
277 N.J. Super.
 51,   63   (1994).   Indeed,     a    suspect        who   was   administered    and

understood Miranda warnings, but did not invoke his rights, "waives

the right to remain silent by making an uncoerced statement to the

police."    Berghuis v. Thompkins, 
560 U.S. 370, 388-89 (2010).

      Here, the trial court made strong findings of fact that

defendant's    statement   had       all       the   indicia     of   voluntariness

required for its admission in evidence.                      The detective read

defendant his Miranda rights, defendant acknowledged he understood

them, and he proceeded to make a voluntary statement.                    Because a

written waiver of rights was not necessary, that was all that was

required to defeat defendant's suppression motion.                    Therefore, we

reverse the trial court's mistaken suppression of the statement

and remand for further proceedings.

      Reversed and remanded.         We do not retain jurisdiction.




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