New Jersey v. Wint

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Justia Opinion Summary

Law enforcement officers arrested defendant Laurie Wint on a New Jersey murder charge and brought him to the Camden County Prosecutor’s Office for questioning. Wint invoked his right to counsel after receiving Miranda warnings, and the interrogation ceased. Immediately afterwards, two detectives from Pennsylvania investigating an unrelated murder in Bucks County entered the interrogation room to question Wint. After receiving his rights for the second time, Wint again requested the presence of counsel, ending the interrogation. Wint remained in continuous pre-indictment custody in Camden County when, six months later, he was transported to Bucks County. There, Pennsylvania detectives again administered Miranda warnings but did not provide counsel as Wint had earlier requested. This time, Wint waived his rights and allegedly incriminated himself in the New Jersey murder. The trial court denied Wint’s motion to suppress his incriminating remarks believing that Wint reinitiated communication with the Pennsylvania detectives. With the admission of Wint’s incriminating statements at trial, a jury convicted Wint of passion/provocation manslaughter and other related offenses. The issues this case presented for the New Jersey Supreme Court's consideration centered on whether Pennsylvania detectives violated Edwards v. Arizona, 451 U.S. 477 (1981), by attempting to question defendant in Camden and later questioning him in Pennsylvania after he earlier requested counsel. The Court also considered the exceptions to the rule requiring the suppression of any statement secured during a subsequent custodial interrogation after a defendant requests counsel: whether (1) counsel was provided during the questioning, (2) defendant initiated the communication, or (3) a break in custody occurred. The Court concluded the Pennsylvania detectives violated Edwards by attempting to question Wint in Camden after his earlier request for counsel, and Wint did not initiate the interrogation that occurred in Bucks County. The giving of repeated Miranda warnings did not cure the Edwards violation. Pre-indictment, pretrial detainment did not qualify as a break in custody under Maryland v. Shatzer, 559 U.S. 98 (2010), and none of the exceptions set forth in Edwards applied here. Edwards required suppression of Wint’s incriminating statement concerning the shooting in Camden; the admission of that statement was not harmless error.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                        State v. Laurie Wint (A-28/29-17) (079660)

Argued September 26, 2018 -- Decided December 12, 2018

ALBIN, J., writing for the Court.

       The Court considers whether Pennsylvania detectives violated Edwards v. Arizona,
 451 U.S. 477 (1981), by attempting to question defendant Laurie Wint in Camden and later
questioning him in Pennsylvania after he earlier requested counsel. The Court also considers
the exceptions to the rule requiring the suppression of any statement secured during a
subsequent custodial interrogation after a defendant requests counsel: whether (1) counsel
was provided during the questioning, (2) defendant initiated the communication, or (3) a
break in custody occurred. See Edwards,  451 U.S. 477; Maryland v. Shatzer,  559 U.S. 98
(2010).

        In Edwards, the United States Supreme Court held that when an accused invokes his
right to have counsel present during a custodial interrogation, questioning must cease unless
the accused initiates further communication or conversation.  451 U.S.  at 484-85. The
Edwards doctrine, which bars continuing an interrogation after a request for counsel, applies
even if a different law enforcement agency seeks to question the accused about an unrelated
crime, Arizona v. Roberson,  486 U.S. 675, 686-88 (1988), but does not apply “when a
suspect who initially requested counsel is reinterrogated after a break in custody that is of
sufficient duration to dissipate its coercive effects.” Shatzer,  559 U.S.  at 109.

        In this case, officers arrested defendant Laurie Wint on a New Jersey murder charge
and brought him to the Camden County Prosecutor’s Office for questioning. Wint invoked
his right to counsel after receiving Miranda warnings, and the interrogation ceased.
Immediately afterwards, two detectives from Pennsylvania investigating an unrelated murder
in Bucks County entered the interrogation room to question Wint. Wint again requested the
presence of counsel, ending the interrogation. When Wint left the room, the detectives
wished him good luck and stated, “[W]hen we get you back to Bucks County we can talk
about this again.” Wint responded, “[Y]eah, I’ll talk to you when we get back to Bucks
County.” Wint remained in continuous pre-indictment custody in Camden County when, six
months later, he was transported to Bucks County. There, Pennsylvania detectives again
administered Miranda warnings but did not provide counsel as Wint had earlier requested.
This time, Wint waived his rights and allegedly said: “In June 2011 I committed a murder in
Camden.” He was charged in a Camden County indictment with murder and other offenses.


                                               1
        Wint moved to suppress the statement he allegedly made in Bucks County. The trial
court determined that Wint’s admission would be admissible at trial. The court found that
Wint had waived his Miranda rights before making the incriminating statement. The court
also concluded that, by saying “that he would speak to them when back in Pennsylvania,”
Wint reinitiated the conversation with the Pennsylvania detectives in Camden. Additionally,
the court maintained that the six-month gap between defendant’s invocation of his right to
counsel and the interrogation was “a substantial lapse in time to warrant his questioning
about the Camden homicide.” The jury acquitted Wint of murder but found him guilty of the
lesser-included offense of passion/provocation manslaughter and the other charged offenses.

       The Appellate Division remanded for reconsideration of the suppression issue. The
panel held that the Pennsylvania detectives violated Edwards by attempting to interrogate
Wint in New Jersey and that Wint did not initiate the third interrogation in Bucks County.
The panel, however, determined that the trial court must engage in an attenuation analysis
and also decide whether the six months between Wint’s requests for counsel and the
questioning in Bucks County constituted a “break in custody” within the purview of Shatzer.

        The Court granted Wint’s petition for certification,  231 N.J. 564 (2017), and the
State’s cross-petition,  231 N.J. 546 (2017).

HELD: The Pennsylvania detectives violated Edwards by attempting to question Wint in
Camden after his earlier request for counsel, and Wint did not initiate the interrogation that
occurred in Bucks County. The giving of repeated Miranda warnings did not cure the
Edwards violation. Wint remained in continuous pre-indictment custody for six months
before the questioning in Bucks County. Pre-indictment, pretrial detainment does not qualify
as a break in custody under Shatzer, and none of the exceptions set forth in Edwards apply
here. Edwards requires suppression of Wint’s incriminating statement concerning the
shooting in Camden. The admission of that statement was not harmless error.

1. In Miranda v. Arizona, the United States Supreme Court imposed the requirement that
before questioning a suspect during a custodial interrogation, the police must provide
warnings,  384 U.S. 436, 479 (1966), and “[i]f the individual states that he wants an attorney,
the interrogation must cease until an attorney is present.” Id. at 474. In Edwards, the Court
held that “when an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of his
rights.”  451 U.S.  at 484. In Arizona v. Roberson, the Court made clear that once a suspect
requests the presence of counsel during an interrogation relating to one investigation, neither
the same nor another law enforcement agency may initiate a second interrogation, even one
relating to a different investigation, without providing the suspect with the counsel he earlier
requested.  486 U.S.  at 677-78, 687-88. (pp. 20-25)

2. In Maryland v. Shatzer, the Court announced a break-in- custody exception to the
Edwards rule.  559 U.S.  at 104-05. The Supreme Court held that Edwards did not mandate
suppression of Shatzer’s incriminating statements because, after his first interrogation,
                                               2
Shatzer experienced a break in Miranda custody by returning to the general prison population
and because the second round of interrogations occurred more than two-and-a-half years
later. Id. at 114, 116-17. The Court maintained that a break in custody means different
things for pretrial detainees and prison inmates. Id. at 106-07, 112-14. The Court concluded
that “an extension of Edwards is not justified . . . when a suspect who initially requested
counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its
coercive effects.” Id. at 109. In that circumstance, the fresh administration of Miranda
warnings when the suspect is reinterrogated is “deemed sufficient” to protect his right to
counsel. Ibid. A break in custody of fourteen days is sufficient “for the suspect to get
reacclimated to his normal life, to consult with friends and counsel, and to shake off any
residual coercive effects of his prior custody.” Id. at 110. (pp. 26-32)

3. Here, approximately three minutes after they knew Wint had unequivocally requested
counsel, the two Pennsylvania detectives entered the Camden County interrogation room to
question Wint about the Pennsylvania murder charge. That was a clear violation of Edwards.
The record does not support the trial court’s finding that Wint initiated a conversation with
the Pennsylvania detectives in which Wint agreed to speak with them at some later time
without counsel. Wint remained in continuous pre-indictment, pretrial custody in the
Camden County jail when he was transported to a police station in Pennsylvania where the
same detectives interrogated him again without providing him with counsel. Wint did not
experience a break in custody within the intendment of Shatzer before he was interrogated
without counsel in Pennsylvania, and therefore the Edwards presumption of involuntariness
applies to the admission Wint made to the detectives. For break-in-custody purposes,
Shatzer distinguished the very different worlds and circumstances of a pretrial detainee and a
convicted inmate. When a pretrial detainee is released into the free world he experiences a
break in custody. Id. at 110. As Shatzer explained, convicted inmates stand in a very
different position because their world is prison. Id. at 113. Wint’s return to his pre-
indictment, pretrial custody in the Camden County jail after two interrogations during which
he invoked his right to counsel was not a return to normalcy. (pp. 32-39)

4. Because the detectives initiated the interrogation and did not provide counsel to Wint,
Edwards requires suppression of the incriminating statement made to the detectives
concerning the shooting in Camden. The admission of Wint’s statement -- “I committed a
murder in Camden” -- was not harmless error and was clearly capable of causing an unjust
result. Wint is therefore entitled to a new trial in the homicide case. Because the erroneous
admission of the statement was not relevant to Wint’s other convictions, those stand. At a
new trial, the State may not admit as substantive evidence Wint’s statement. The Court does
not address arguments about the prosecutor’s summation, and it rejects Wint’s argument that
the trial court improperly dismissed two jurors. (pp. 39-42)

       REVERSED and REMANDED for a new trial.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and
TIMPONE join in JUSTICE ALBIN’s opinion. JUSTICES FERNANDEZ-VINA and
SOLOMON did not participate.
                                                3
       SUPREME COURT OF NEW JERSEY
           A-28/
29 September Term 2017
                       079660


                State of New Jersey,

       Plaintiff-Respondent/Cross-Appellant,

                         v.

       Laurie Wint, a/k/a Laurie A. Wint, Jr.,
          Laurie Ainsworth Wint, Lance,

      Defendant-Appellant/Cross-Respondent.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                      Decided
 September 26, 2018           December 12, 2018


Marcia Blum, Assistant Deputy Public Defender,
argued the cause for appellant/cross-respondent
(Joseph E. Krakora, Public Defender, attorney; Marcia
Blum, of counsel and on the briefs).

Sarah Lichter, Deputy Attorney General, argued the
cause for respondent/cross-appellant (Gurbir S.
Grewal, Attorney General, attorney; Sarah Lichter, of
counsel and on the briefs).

Nicholas C. Harbist argued the cause for amicus
curiae the Association of Criminal Defense Lawyers
of New Jersey (Blank Rome, attorneys; Nicholas C.
Harbist, on the brief).


                          1
             Alexander Shalom argued the cause for amicus curiae
             American Civil Liberties Union of New Jersey
             (American Civil Liberties Union of New Jersey
             Foundation, attorneys; Alexander Shalom, Alexi
             Machek Velez, Edward Barocas and Jeanne LoCicero,
             on the brief).


             JUSTICE ALBIN delivered the opinion of the Court.


      In Edwards v. Arizona, the United States Supreme Court held that when

an accused invokes his right to have counsel present during a custodial

interrogation, questioning must cease unless the accused initiates further

communication or conversation.  451 U.S. 477, 484-85 (1981). The Edwards

doctrine, which bars continuing an interrogation after a request for counsel,

applies even if a different law enforcement agency seeks to question the

accused about an unrelated crime, Arizona v. Roberson,  486 U.S. 675, 686-88

(1988), and even if the accused has consulted with an attorney, Minnick v.

Mississippi,  498 U.S. 146, 153 (1990). The Edwards doctrine, however, does

not apply “when a suspect who initially requested counsel is reinterrogated

after a break in custody that is of sufficient duration to dissipate its coercive

effects.” Maryland v. Shatzer,  559 U.S. 98, 109 (2010) (emphasis added).

      In this case, law enforcement officers arrested defendant Laurie Wint on

a New Jersey murder charge and brought him to the Camden County

Prosecutor’s Office for questioning. Wint invoked his right to counsel after


                                         2
receiving Miranda1 warnings, and the interrogation ceased. Immediately

afterwards, two detectives from Pennsylvania investigating an unrelated

murder in Bucks County entered the interrogation room to question Wint.

After receiving his rights for the second time, Wint again requested the

presence of counsel, ending the interrogation. Wint remained in continuous

pre-indictment custody in Camden County when, six months later, he was

transported to Bucks County. There, Pennsylvania detectives again

administered Miranda warnings but did not provide counsel as Wint had earlier

requested. This time, Wint waived his rights and allegedly incriminated

himself in the New Jersey murder.

       The trial court denied Wint’s motion to suppress his incriminating

remarks believing that, for Edwards purposes, Wint reinitiated communication

with the Pennsylvania detectives. The court also determined that the six-

month lapse in time between interrogations satisfied the Shatzer “break-in-

custody” requirement. With the admission of Wint’s incriminating statements

at trial, a jury convicted Wint of passion/provocation manslaughter and other

related offenses.

       The Appellate Division remanded to the trial court for reconsideration of

the suppression issue. The panel held that the Pennsylvania detectives violated


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

                                        3
Edwards by attempting to interrogate Wint just minutes after he had requested

counsel from New Jersey law enforcement officers. The panel also found that

Wint did not initiate the third interrogation in Bucks County. The panel,

however, stopped short of suppressing Wint’s incriminating statements. The

panel determined that the trial court must engage in an attenuation analysis and

also decide whether the six-month period between Wint’s requests for counsel

and the third round of questioning in Bucks County constituted a “break in

custody” within the purview of Shatzer.

      We now reverse. We agree with the Appellate Division that the

Pennsylvania detectives violated Edwards by attempting to question Wint in

Camden after his earlier request for counsel. We also agree that Wint did not

initiate the interrogation that occurred in Bucks County. That third and last

interrogation proceeded without the presence of counsel despite Wint’s two

previous requests for counsel. Here, the giving of repeated Miranda warnings

did not cure the Edwards violation.

      Wint remained in continuous pre-indictment custody for a period of six

months before the questioning in Bucks County. Therefore, no “break in

custody” occurred within the intendment of Shatzer. The Supreme Court set a

bright line in Edwards and Shatzer: after a defendant requests counsel during

a custodial interrogation, any statement secured during a subsequent custodial


                                       4
interrogation must be suppressed unless (1) counsel was provided during the

questioning, (2) defendant initiated the communication, or (3) a break in

custody occurred. None of those exceptions apply here. We therefore part

with the panel’s decision to remand for an attenuation analysis and a break-in-

custody analysis.

      Accordingly, we reverse the judgment of the Appellate Division and

remand for a new trial on the charge of passion/provocation manslaughter at

which the incriminating statements made by Wint in Pennsylvania will be

inadmissible.

                                       I.

                                       A.

      On September 26, 2012, Wint was charged in a Camden County

indictment with murder,  N.J.S.A. 2C:11-3(a)(1) and (2); second-degree

possession of a firearm for an unlawful purpose,  N.J.S.A. 2C:39-4(a); second-

degree unlawful possession of a firearm,  N.J.S.A. 2C:39-5(b); fourth-degree

resisting arrest,  N.J.S.A. 2C:29-2(a); and second-degree certain persons not to

possess weapons,  N.J.S.A. 2C:39-7(b). Wint moved to suppress a statement he

allegedly made to Pennsylvania detectives in Bucks County. He claimed that

the Pennsylvania detectives violated Edwards by initiating an interrogation

despite his earlier request for counsel in New Jersey.


                                       5
      A suppression hearing was conducted in the Camden County Superior

Court, Law Division. At the hearing, the State elicited testimony from three

witnesses: Investigator Lance Saunders of the Camden County Prosecutor’s

Office and two Pennsylvania detectives -- Detective John Bonargo of the

Warminster Township Police Department and Detective Martin McDonough of

the Bucks County District Attorney’s Office. The testimony focused on three

interrogations of Wint while he remained in pre-indictment custody.

      Wint was charged on June 16, 2011 with the murder of Kevin Miller in

the city of Camden and on July 29, 2011 with the murder of Tyrone Newman

in Warminster Township, Pennsylvania. On July 31, 2011, Camden police

officers arrested Wint and transported him to the Camden County Prosecutor’s

Office for questioning.

      Investigator Saunders began interrogating Wint while Detectives

Bonargo and McDonough from Pennsylvania watched from an adjacent room.

Investigator Saunders advised Wint of his Miranda rights, including his right

to the presence and appointment of counsel. Following a brief exchange, Wint

responded, “I think I should call my lawyer” and “I really don’t want to talk to

anybody.” All questioning then ceased.

      After leaving the interrogation room, Investigator Saunders informed

Detectives Bonargo and McDonough that Wint had invoked his right to


                                       6
counsel. Nevertheless, approximately three minutes later, the two

Pennsylvania detectives entered the interrogation room to question Wint about

their case. The detectives introduced themselves and, while acknowledging

that Wint had chosen not to speak about the Camden case, asked whether he

would be willing to speak about the Bucks County investigation. Wint

responded he would if given a cigarette. However, after the detectives read

him his Miranda rights, Wint requested the presence of counsel:

            [McDonough]: Do you wish to speak to us without a
            lawyer being present?

            [Wint]: I want him to sit here while we talk.

            [McDonough]: I didn’t hear. Do you wish to speak to
            us without a lawyer being present?

            [Wint]: I want him to sit here while we talk.

            [McDonough]: You want a lawyer here with us?

            [Wint]: Yeah --

            [McDonough]: Okay, so that, that won’t happen today
            because we don’t have a lawyer here with you --

            [Wint]: Oh --

            [McDonough]: But if you want one, that, that, that’s
            fine.

            [Wint]: Yeah.

            [McDonough]: You’re welcome to that.


                                       7
            [Wint]: Okay.

            [McDonough]: But, um, if you wanted to talk to us
            today then, then your answer here would be no?

            [Wint]: No. It would be no.

            [McDonough]: Or do you want to talk to us today?

            [Wint]: I wanna talk to ya’ll but I want a lawyer here
            present cause I don’t, I don’t --

            [McDonough]: I got ya. I got ya. If that’s, that, if
            that’s your answer, that, that’s your answer.

            [Wint]: Yeah. So --

            [McDonough]: So, you do not want to talk to us right
            now?

            [Wint]: Without a lawyer.

      In light of that dialogue, the Pennsylvania detectives stopped the

questioning and exited the room. When Wint left the room, the detectives

initiated an unrecorded verbal exchange with him. The detectives wished him

good luck and stated, “[W]hen we get you back to Bucks County we can talk

about this again.” Wint responded, “[Y]eah, I’ll talk to you when we get back

to Bucks County.”

      Several months later, the Pennsylvania detectives returned to Camden to

secure DNA samples from Wint, who was being held in the Camden County

jail. In their encounter with Wint, the detectives informed him that they were


                                        8
taking steps to transfer him to Bucks County where they would like to talk to

him. Wint reportedly responded, “I’ll talk to you when I get back to Bucks

[County].” During neither of those informal conversations -- prompted by the

detectives -- did Wint indicate that he wished to speak without counsel present.

      On January 18, 2012, six months after Wint had invoked his right to

counsel in two separate interrogations, the Pennsylvania detectives transported

Wint to the Warminster police station in Bucks County for processing on the

Pennsylvania murder charge. The booking process was audio recorded. Then,

Wint was taken to a room with video- but not audio-recording capability.

There, Detective McDonough advised Wint of his Miranda rights from the

same form he used six months earlier. Wint signed the form and this time

waived his rights.

      The detectives then questioned Wint about the circumstances

surrounding the death of Tyrone Newman in Warminster. Detective

McDonough penned a fifteen-page statement summarizing Wint’s first-person

account of the events. In explaining the reason for his presence in Warminster

at the time of the Newman homicide, Wint allegedly said: “In June 2011 I

committed a murder in Camden. About three weeks after the murder I saw my

picture on TV. J-Rock and I decided we needed to leave from Camden and go

and stay in Warminster.” According to Detective McDonough, Wint reviewed


                                       9
the fifteen-page statement, made some corrections in his own handwriting, and

signed the statement.

      The trial court determined that Wint’s admission that he committed a

murder in Camden in June 2011 would be admissible at Wint’s upcoming trial

on the Camden County charges. The court found that Wint had knowingly,

intelligently, and voluntarily waived his Miranda rights before making the

incriminating statement. The court also concluded that, by saying “that he

would speak to them when back in Pennsylvania,” Wint reinitiated the

conversation with the Pennsylvania detectives in Camden. In the court’s view,

that remark opened a pathway for the detectives to interrogate Wint six months

later in the Warminster police station. Additionally, applying Shatzer, the

court maintained that the six-month gap between defendant’s invocation of his

right to counsel in Camden and the interrogation in Warminster was “a

substantial lapse in time to warrant his questioning about the Camden

homicide.”

                                       B.

      At Wint’s jury trial, the State presented evidence of a deadly

confrontation between Wint and Kevin Miller in Eutaw Park in Camden on the

evening of June 8, 2011. The State argued that Wint purposely and without




                                       10
justification shot and killed Miller. In contrast, Wint claimed that he acted in

self-defense after being jumped by Miller and his cohorts.

      The State’s testimony revealed that on June 8, Miller went to his

girlfriend’s home to celebrate her birthday only to learn that she was not there

but in the company of Wint with whom she formerly had an intimate

relationship. Miller, angered by this revelation, drove around Camden with a

friend, Clifton Bailey, in search of his girlfriend and Wint. Miller and Bailey

eventually met up with a friend at Eutaw Park. Miller entered the park while

his two friends remained at the park’s entrance. When Bailey heard a gunshot,

he raced inside the park and observed a person running from the scene. He

found Miller seriously injured with a gunshot wound and took him to the

hospital, where Miller died during surgery.

      The State presented no eyewitnesses to the shooting. The State,

however, placed on the stand John Briggs -- Wint’s best friend -- who testified

to the account that Wint gave him of the confrontation in the park. According

to that account, Miller, Bailey, and other individuals attempted to jump Wint.

One person from Miller’s group reached for a gun at which point Wint pulled

out a handgun he was carrying and fired in self-defense.

      Wint testified that he learned that Miller was looking for him and that he

believed that Miller and Bailey were members of the Bloods street gang. He


                                       11
admitted that he was armed with a gun for his self-protection although he had

no permit to carry the weapon. He stated that Miller and three others accosted

him in Eutaw Park. Three members of the group started punching him, and he

fell to the ground. Then, Bailey pulled out a gun as another person from the

group reached for a second gun. At that point, Wint drew his gun and, without

aiming, pulled the trigger. Wint claimed that, at the time, he did not know that

he struck anyone, asserting, “I wasn’t trying to kill anyone. I was just trying

to save myself.” Wint then ran from the park and discarded the weapon. He

fled to Pennsylvania several weeks later, in part because he feared retaliation

by the Bloods gang.

      To preemptively discredit that version of the shooting, the State earlier

presented both the medical examiner’s testimony that the deadly shot was fired

at a downward angle and Detective McDonough’s testimony that Wint

admitted at the Warminster police station that he had “committed a murder” in

Camden. Concerning the alleged admission, Wint explained, “I told

[Detective McDonough] I did a shooting in Camden,” and that the detective

characterized it as a murder.

      The jury acquitted Wint of murder but found him guilty of the lesser-

included offense of passion/provocation manslaughter,  N.J.S.A. 2C:11-4(b)(2),

and the other charged offenses. The court sentenced Wint to an extended term


                                       12
of fourteen years on the manslaughter conviction, subject to the No Early

Release Act,  N.J.S.A. 2C:43-7.2; a consecutive term of eight years with a five-

year period of parole disqualification on the certain-persons conviction; and a

concurrent one-year term on the resisting-arrest conviction. The other firearm

possessory offenses were merged. The court ran the aggregate twenty-two

year term, subject to a sixteen-year and eleven-month period of parole

ineligibility, consecutive to the sentence Wint was serving in Pennsylvania.

                                       C.

      In an unpublished opinion, the Appellate Division primarily focused on

Wint’s argument that the trial court’s admission of Wint’s incriminating

statement to the Pennsylvania detectives in Warminster violated his

constitutional rights as articulated in the Edwards line of cases. In addressing

that issue, the panel made some preliminary findings: (1) “the Pennsylvania

detectives had no right to initiate any interrogation of [Wint], only minutes

after he had invoked his right to counsel in the same interrogation room to the

Camden detectives”; (2) their attempted interrogation of Wint in Camden was

constitutionally prohibited in the absence of summoning counsel for Wint; and




                                       13
(3) the detectives -- not Wint -- initiated the post-interrogation discussions in

Camden and the later interrogation in the Warminster police station. 2

      As the panel observed, “Shatzer recognized an important doctrinal

distinction between the interrogation of persons who are confined due to past

convictions, as opposed to persons who are pretrial detainees,” citing Shatzer,

 559 U.S.  at 106-08. The panel acknowledged that, under Shatzer, a break in

custody after an interrogation means one thing for convicted prison inmates

and another thing for pretrial detainees. For interrogated inmates, a break in

custody is a release back to the general prison population, where “they return

to their accustomed surroundings and daily routine,” whereas for interrogated

pretrial detainees, a break in custody is a release from pretrial custody and a

return to a normal life in the free world, quoting Shatzer,  559 U.S.  at 113.

      Despite the differences that Shatzer delineated between prison inmates

and pretrial detainees, the panel examined whether, for break-in-custody

purposes, the circumstances of an interrogated pretrial detainee who remains in

custody for six months in a county jail is any different from that of an

interrogated convicted inmate who is released back into the general prison

population. The panel questioned whether the ability of the Pennsylvania



2
  The panel rejected “the trial court’s mistaken finding” that Wint reinitiated
discussions with the Pennsylvania detectives.

                                        14
authorities to place coercive pressures or exert leverage on Wint, who was

confined in a Camden jail, was any different than if he were a convicted

inmate serving time in prison. Thus, the panel concluded that the record was

“incomplete and inconclusive to enable the Shatzer 'break-in-custody’ analysis

to be resolved definitively.”

      The panel also determined that the record was inadequate to analyze

whether the six-month gap in time before the Warminster interrogation

dissipated the taint of the improper attempted interrogation in Camden at

which defendant invoked his right to counsel. The panel looked to Michigan

v. Mosley,  423 U.S. 96 (1975); State v. Maltese,  222 N.J. 525 (2015); and

State v. Hartley,  103 N.J. 252 (1986), cases where courts conducted an

attenuation analysis after the defendants invoked their right to remain silent,

rather than the Edwards line of cases where defendants invoked their right to

an attorney. The panel directed that, on remand, the trial court conduct an

attenuation analysis and examine a non-exhaustive list of factors: the time

between the interviews; the place of the interviews; whether adequate Miranda

warnings were given; the effect of any admissions made at the first

interrogation on the second interrogation; and the “purpose and flagrancy” of

the police misconduct, citing Brown v. Illinois,  422 U.S. 590, 604 (1975). The

panel did “not subscribe to the extreme view that [Wint]’s invocation of his


                                       15
Fifth Amendment rights . . . inexorably barred all law enforcement agents from

any jurisdiction from attempting to interview him about the crimes during his

lengthy period of pretrial detention.”

      The panel instructed the trial court to decide, after conducting a break-

in-custody and attenuation analysis, whether to suppress or admit Wint’s

incriminating statement. The panel stated that if the court orders suppression

then “[Wint]’s conviction must be vacated and a new trial shall proceed, at

which the statement will be excluded.” The panel did not elaborate on whether

any potential new trial applied just to the manslaughter conviction or also to

the resisting-arrest and gun-possession convictions.

      Last, the panel rejected Wint’s contentions that the prosecutor denied

him a fair trial by arguing in summation that “he should have waited for the

police at the scene of the shooting if indeed his conduct was innocuous” and

that the trial court should have declared a mistrial after removing and replacing

two deliberating jurors.

      We granted Wint’s petition for certification,  231 N.J. 564 (2017), and

the State’s cross-petition,  231 N.J. 546 (2017). 3 We also granted the motions


3
  We granted certification on three issues, only one of which we discuss at
length in this opinion. The last two issues, which concern the prosecutor’s
summation and the court’s replacement of two jurors, are discussed summarily
at the conclusion of the opinion. We do not present the parties’ arguments on
those issues.

                                         16
of the American Civil Liberties Union of New Jersey (ACLU) and the

Association of Criminal Defense Lawyers of New Jersey (ACDL) to

participate as amici curiae.

                                      II.

                                      A.

      Wint contends that the Appellate Division failed to follow the commands

of Edwards and Shatzer by remanding to the trial court for a break-in-custody

and attenuation analysis. Wint asserts that he remained in continuous,

uninterrupted pre-indictment custody from the time he repeatedly invoked his

right to counsel during separate interrogations by New Jersey and

Pennsylvania law enforcement authorities until he was questioned later in

Pennsylvania without counsel. Given the absence of a break in custody, Wint

submits, Edwards barred his subsequent interrogation without counsel because

he did not initiate a discussion with the Pennsylvania detectives. He reasons

that the amount of time a suspect spends in pre-indictment custody does not

constitute a break in custody because the longer the period awaiting

indictment, the greater the coercive pressure to cooperate without the counsel

he earlier requested, citing Minnick,  498 U.S.  at 153, and Roberson,  486 U.S. 
at 686.




                                      17
      Wint emphasizes that in erroneously requiring an attenuation analysis,

the Appellate Division followed the line of Miranda cases involving a

suspect’s invocation of his right to remain silent, such as Mosley, Maltese, and

Hartley. He notes that in the Edwards line of cases involving a suspect’s

invocation of his right to counsel, the Supreme Court suppresses statements

elicited in the absence of counsel; no attenuation analysis is conducted.

      Amici ACLU and ACDL advance many of the same arguments as Wint.

The ACLU contends that Shatzer’s break-in-custody rule applies to

interrogated convicted inmates who are returned to the general prison

population for fourteen days or longer but not to interrogated suspects awaiting

indictment who are returned to pretrial detention rather than released into the

community. According to the ACLU, Shatzer made very clear that pretrial

detention is different from post-conviction incarceration in an Edwards

context. The ACDL argues that law enforcement would be given a perverse

incentive if the longer a pre-indictment detainee is held in jail after invoking

his right to counsel, the easier it becomes to continue to question him without

counsel. Both the ACLU and ACDL point out New Jersey’s strong and

independent commitment to the privilege against self-incrimination, which is

codified in  N.J.S.A. 2A:84A-19 and N.J.R.E. 503, as well as our state-law

jurisprudence.


                                        18
                                         B.

      The State acknowledges that a defendant who is in pre-indictment

custody and has invoked his right to counsel cannot be reinterrogated until an

attorney is provided unless the defendant reinitiates contact with the police or

a break in custody of at least fourteen days occurs. The State, however, asserts

that “[Wint] only conditionally invoked his right to counsel initially.”

According to the State, Wint’s verbal exchanges with the Pennsylvania

detectives indicated that Wint wanted an attorney present if the detectives

intended to take a statement from him in Camden but that “he would freely

speak with [them] once he was transported back to Pennsylvania.” The State

takes the position that Wint initiated contact with the Pennsylvania detectives

because “on two occasions over the course of three months, [he] told [those]

detectives he would talk with them when he was brought to Pennsylvania.”

      The State, moreover, maintains that “a six-month break in Miranda

custody” occurred between the attempted interrogations in Camden, where

defendant invoked his right to counsel, and the interrogation in Warminster,

where defendant waived his rights and gave a voluntary statement. The State

rejects the proposition that “the Shatzer break-in-custody analysis applies only

to prisoners who are serving a sentence upon conviction, and never to pre-trial

detainees.”


                                       19
      In the State’s view, the question posed by Shatzer is not whether Wint

had the opportunity “to return to the normalcy of his pre-arrest life outside of

prison,” but rather whether Wint’s return to jail “following the initial

interrogation represented the same sort of 'return to normalcy’ experienced by

Shatzer after his initial interrogation” and return to the general prison

population. The State answers that question by stressing that Wint was simply

subject to the ordinary restrictions of daily life in the county jail during his six-

month detention and not to “the sort of coercive pressures inherent in

'interrogative custody’ that Miranda and Edwards are meant to deflect,” citing

Shatzer,  559 U.S.  at 113 n.8. Accordingly, the State contends that if Shatzer’s

return to the general prison population after his interrogation constit uted a

break in custody, so too does Wint’s return to the county jail population.

      The State therefore asks this Court to reverse the Appellate Division’s

remand for a break-in-custody and attenuation analysis and affirm Wint’s

convictions.

                                        III.

                                         A.

      One of the fundamental guarantees of the United States Constitution and

our state law is that no person can be compelled to be a witness against himself

in a criminal case. See U.S. Const. amend. V (“No person . . . shall be


                                         20
compelled in any criminal case to be a witness against himself . . . .”); 4 N.J.S.A. 2A:84A-19 (“[E]very natural person has a right to refuse to disclose

in an action or to a police officer or other official any matter that will

incriminate him or expose him to a penalty or a forfeiture of his estate . . . .”);

N.J.R.E. 503 (same as  N.J.S.A. 2A:84A-19).

      In the landmark case of Miranda v. Arizona, the United States Supreme

Court imposed safeguards to enable an individual to exercise meaningfully the

right against self-incrimination when interrogated while in police custody.  384 U.S. 436, 477 (1966). To counteract the inherent psychological pressures that

might compel a person subject to a custodial interrogation “to speak where he

would not otherwise do so freely,” the Court mandated that the police advise a

suspect of certain basic rights. Id. at 467, 479. Before questioning a suspect

during a custodial interrogation, the police must warn him 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.

             [Id. at 479 (emphasis added).]




4
  The Fifth Amendment right against self-incrimination has been made
applicable to the states through the Due Process Clause of the Fourteenth
Amendment. Malloy v. Hogan,  378 U.S. 1, 8 (1964).

                                         21
Miranda further instructed that “[i]f the individual states that he wants an

attorney, the interrogation must cease until an attorney is present.” Id. at 474

(emphasis added). An individual who requests counsel must be given “an

opportunity to confer with the attorney and to have him present during any

subsequent questioning.” Ibid. (emphasis added). If the State fails to honor a

defendant’s exercise of the right to counsel, including the right to appointed

counsel, “no evidence obtained as a result of interrogation can be used against

him.” Id. at 479.

      In Edwards v. Arizona, the Supreme Court took additional steps to

ensure that the right to counsel guaranteed in Miranda would not be

circumvented.  451 U.S. 477. Edwards held that “when an accused has

invoked his right to have counsel present during custodial interrogation, a

valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if he has been

advised of his rights.” Id. at 484. The Court further held that an accused, who

has “expressed his desire to deal with the police only through counsel, is not

subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.” Id. at 484-85.




                                       22
      In that case, the police arrested Edwards on charges of murder, robbery,

and burglary. Id. at 478. After initially waiving his Miranda rights and

speaking to the police at the stationhouse, Edwards said, “I want an attorney

before making a deal,” at which point the questioning ceased. Id. at 479. The

next morning, two detectives visited Edwards in the county jail and advised

him again of his Miranda rights, including his right to counsel. Ibid. That

time, Edwards waived his rights and confessed. Ibid. The Supreme Court

suppressed the confession because Edwards requested counsel at the first

interrogation and did not initiate the meeting the next day with the detectives,

and because the detectives questioned him without making counsel available to

him at the second interrogation. Id. at 487.

      In Arizona v. Roberson, the Supreme Court elaborated on Edwards and

made clear that once a suspect requests the presence of counsel during an

interrogation relating to one investigation, neither the same nor another law

enforcement agency may initiate a second interrogation, even one relating to a

different investigation, without providing the suspect with the counsel he

earlier requested.  486 U.S.  at 677-78, 687-88. In Roberson, the defendant was

arrested for burglary, advised of his Miranda rights, and told the arresting

officer that he “wanted a lawyer before answering any questions.” Id. at 678.

Three days later, a different officer, unaware that the defendant earlier


                                       23
requested the assistance of counsel, interrogated the defendant about another

burglary. Ibid. That time, despite being informed that he had the right to

counsel, the defendant made an incriminating statement. Ibid.

      The Supreme Court affirmed the suppression of the statement. Id. at

688. The Court explained its rationale: “[T]he presumption raised by a

suspect’s request for counsel -- that he considers himself unable to deal with

the pressures of custodial interrogation without legal assistance -- does not

disappear simply because the police have approached the suspect, still in

custody, still without counsel, about a separate investigation.” Id. at 683.

Moreover, when the suspect requests the presence of an attorney to deal with

the inherent pressures of his custodial status, “there is no reason to assume that

a suspect’s state of mind is in any way investigation-specific.” Id. at 684. The

obligation is on the law enforcement officers seeking to reinterrogate a suspect

to inquire whether he had earlier invoked the right to counsel. Id. at 687-88.

Although nothing prevents a law enforcement agency from advising a suspect

that he is the subject of separate investigations, if the suspect has earlier

requested the assistance of counsel and not initiated discussions with the

authorities, he “can determine how to deal with the separate investigations

with counsel’s advice.” Id. at 687.




                                         24
      The Court in Roberson distinguished the bright line barring a subsequent

interrogation in a case where the suspect has invoked his right to counsel from

a case where the suspect has merely decided to cut off questioning, as in

Mosley,  423 U.S.  at 103-04. Roberson,  486 U.S.  at 682-83. The request for

counsel, unlike the decision to remain silent, “raise[s] the presumption that

[the suspect] is unable to proceed without a lawyer’s advice.” Id. at 683. Last,

the Court reaffirmed the benefits of the “clear and unequivocal” guidelines

provided by the Edwards rule: The police and prosecutors are given specific

instructions on how to conduct custodial interrogations and know that the

failure to follow those instructions will result in suppression of otherwise

“trustworthy and highly probative evidence.” Id. at 681-82.

      Minnick v. Mississippi further fortified Miranda’s and Edwards’s focus

on the importance of the actual presence of counsel at a custodial interrogation

when a suspect invokes his right to counsel.  498 U.S.  at 152-53. The Court

held “that when counsel is requested, interrogation must cease, and officials

may not reinitiate interrogation without counsel present, whether or not the

accused has consulted with his attorney.” Id. at 153. The Court stressed that

the presence of counsel is not a mere procedural formality but a safeguard to

ensure that the “police interrogation conform[s] to the dictates of the [Fifth

Amendment]” and “that statements made in the government-established


                                       25
atmosphere are not the product of compulsion.” Id. at 152 (second alteration

in original) (quoting Miranda,  384 U.S. at 466). Thus, the Court “decline[d] to

remove protection from police-initiated questioning based on isolated

consultations with counsel who is absent when the interrogation resumes.” Id.

at 154.

                                        B.

      In Maryland v. Shatzer, the Supreme Court announced a break-in-

custody exception to the Edwards rule, which presumes that, after a defendant

invokes his right to counsel, any statement taken during a subsequent custodial

interrogation without counsel is not voluntary.  559 U.S.  at 104-05. What

constitutes a break in custody is hotly debated between the parties in the

present case. The United States Supreme Court has never explicitly placed any

temporal limits on the Edwards rule when a statement is the product of a

police-initiated interrogation of a defendant who earlier invoked his right to

counsel and who remains in continuous pre-indictment, pretrial custody. The

question is whether, in the circumstances of the present case, Shatzer opened

the door to police-initiated questioning of a pre-indictment, pretrial detainee in

the absence of counsel.

      In Shatzer, a township police detective investigating allegations that

Shatzer had sexually abused his son sought to interview Shatzer, who was


                                        26
imprisoned in a state correctional institution on an unrelated offense. Id. at

100-01. The detective read Shatzer his Miranda rights, and after a short

colloquy, Shatzer declined to speak without an attorney, ending the interview.

Id. at 101. Two-and-a-half years later, another detective from the same police

department, armed with more specific information, visited a correctional

institution to interview Shatzer. Ibid. The detective explained the allegations

to Shatzer, read him his Miranda rights, and secured a written waiver of those

rights. Ibid. During the interview, Shatzer made an incriminating statement.

Id. at 101-02. At no point did Shatzer request to speak with an attorney. Id. at

102. Five days later, the interrogating detective and another detective returned

to the correctional institution. Ibid. Shatzer again waived his Miranda rights

and made a further inculpatory statement, after which he requested counsel and

the interrogation ceased. Ibid.

      The Supreme Court held that Edwards did not mandate suppression of

Shatzer’s incriminating statements because, after his first interrogation,

Shatzer experienced a break in Miranda custody by returning to the general

prison population and because the second round of interrogations occurred

more than two-and-a-half years later. Id. at 114, 116-17. The Court

maintained that a break in custody means different things for pretrial detainees

and prison inmates. Id. at 106-07, 112-14.


                                       27
      In the case of a suspect who is “arrested for a particular crime and is

held in uninterrupted pretrial custody while that crime is being actively

investigated[,] . . . he remains cut off from his normal life and companions,

'thrust into’ and isolated in an 'unfamiliar,’ 'police-dominated atmosphere,’

where his captors 'appear to control [his] fate.’” Id. at 106 (third alteration in

original) (first quoting Miranda,  384 U.S. at 456-57; then quoting Illinois v.

Perkins,  496 U.S. 292, 297 (1990)). That was the scenario faced by the

defendants in Edwards, Roberson, and Minnick because none of those

defendants “regained a sense of control or normalcy after they were initially

taken into custody for the crime under investigation.” Id. at 106-07. The

“continued detention [of those defendants] rested with those controlling their

interrogation, and [they] confronted the uncertainties of what final charges

they would face, whether they would be convicted, and what sentence they

would receive.” Id. at 114 (emphasis added).

      The Shatzer Court explained, however, that when “a suspect has been

released from his pretrial custody and has returned to his normal life for some

time before the later attempted interrogation, there is little reason to think that

his change of heart regarding interrogation without counsel has been coerced. ”

Id. at 107 (emphasis added). In that situation, the suspect “has no longer been

isolated. He has likely been able to seek advice from an attorney, family


                                        28
members, and friends. And he knows from his earlier experience that he need

only demand counsel to bring the interrogation to a halt; and that investigative

custody does not last indefinitely.” Id. at 107-08 (footnote omitted). The

Court concluded that “an extension of Edwards is not justified . . . when a

suspect who initially requested counsel is reinterrogated after a break in

custody that is of sufficient duration to dissipate its coercive effects.” Id. at

109. In that circumstance, the fresh administration of Miranda warnings when

the suspect is reinterrogated is “deemed sufficient” to protect his constitutional

right to counsel. Ibid.

      The Court applied this paradigm to Shatzer, a convicted inmate, who,

after his initial interrogation at which he invoked his right to counsel, was

returned to the general prison population where he remained for two-and-a-

half years before detectives reinterrogated him. Id. at 112. The Court

ultimately determined that Shatzer’s return to the general prison population

qualified as a break in custody. Id. at 117. It reached that conclusion because,

in its view, “lawful imprisonment imposed upon conviction of a crime does not

create the coercive pressures identified in Miranda.” Id. at 113 (emphasis

added). The Court gave the following rationale for considering a convicted

inmate’s return to the general prison population a break in custody:

                   Interrogated suspects who have previously been
             convicted of crime live in prison. When they are

                                         29
            released back into the general prison population, they
            return to their accustomed surroundings and daily
            routine -- they regain the degree of control they had
            over their lives prior to the interrogation. Sentenced
            prisoners, in contrast to the Miranda paradigm, are not
            isolated with their accusers. They live among other
            inmates, guards, and workers, and often can receive
            visitors and communicate with people on the outside by
            mail or telephone.

                  Their detention, moreover, is relatively
            disconnected from their prior unwillingness to
            cooperate in an investigation. The former interrogator
            has no power to increase the duration of incarceration,
            which was determined at sentencing.

            [Id. at 113.]

      The Court adopted a bright-line rule for determining when a break in

custody is of adequate length to overcome the Edwards presumption of

involuntariness attaching to a police-initiated reinterrogation of a suspect who

earlier has requested counsel. Id. at 109-10. A break in custody of fourteen

days, the Court held, is sufficient “time for the suspect to get reacclimated to

his normal life, to consult with friends and counsel, and to shake off any

residual coercive effects of his prior custody.” Id. at 110. Because Shatzer’s

break in custody lasted two-and-a-half years, the incriminating statements

made at his reinterrogation were admissible. Id. at 110, 117.

      Shatzer did not suggest that, for break-in-custody purposes, a convicted

inmate returning to the general prison population is comparable to a pre-


                                        30
indictment, pretrial detainee returning to his jail cell. See Howes v. Fields,

 565 U.S. 499, 510 (2012) (noting that Shatzer “held that a break in custody

may occur while a suspect is serving a term in prison”). Indeed, in discussing

the coercive effects of custodial interrogation in the Miranda context, the

Court in Howes took pains to distinguish between convicted inmates on the

one hand and pretrial detainees on the other. Id. at 511-12 (“[A] prisoner,

unlike a person who has not been convicted and sentenced, knows that the law

enforcement officers who question him probably lack the authority to affect

the duration of his sentence.” (citing Shatzer,  559 U.S. at 103-14)).

      Some courts, but not all, have concluded that Shatzer expressed the

“view that sentenced prisoners are distinct from pretrial detainees for purposes

of [the Edwards] presumption of involuntariness.” United States v. Coles,  264 F. Supp. 3d 667, 683 (M.D. Pa. 2017) (holding that pretrial detainee “did not

experience a break in Miranda custody when he was returned to pretrial

detention for 35 days between interrogations”); Trotter v. United States,  121 A.3d 40, 48-49 (D.C. 2015) (holding that for Shatzer purposes five-month

period between interrogations did not constitute break in custody for pretrial

detainee). But see Commonwealth v. Champney,  161 A.3d 265, 284 (Pa.

Super. Ct. 2017) (holding that “the nearly five-month break between [pretrial




                                       31
detainee’s] invocation of his right to counsel and the prison interrogation

removed the Edwards presumption of involuntariness”).

                                       IV.

      We now apply the legal principles developed in the Edwards line of

cases to the facts before us.

      Wint faced separate murder charges in Camden County and Bucks

County when police officers arrested him and took him to the Camden County

Prosecutor’s Office for questioning. Wint was placed in an interrogation

room, where an investigator from the Camden County Prosecutor’s Office

proceeded to interview him as two Pennsylvania detectives watched from an

adjacent room. After the investigator advised Wint of his Miranda rights, Wint

told him, “I think I should call my lawyer” and “I really don’t want to talk to

anybody.” (emphasis added). The investigator then stopped the interview.

      Despite having observed Wint invoke his right to counsel and having

been told about that invocation, the two Pennsylvania detectives entered the

room to question Wint about the Pennsylvania murder charge. That attempt by

the Pennsylvania detectives to interrogate Wint about their investigation,

approximately three minutes after they knew he had unequivocally requested

counsel, was a clear violation of Edwards. See Roberson,  486 U.S.  at 677-78,

687-88 (stating that when defendant requests counsel during interrogation by


                                       32
one law enforcement agency, another law enforcement agency may not initiate

second interrogation relating to another investigation); see also McNeil v.

Wisconsin,  501 U.S. 171, 177 (1991) (“The Edwards rule . . . is not offense

specific: Once a suspect invokes the Miranda right to counsel for interrogation

regarding one offense, he may not be reapproached regarding any offense

unless counsel is present.” (citing Roberson,  486 U.S. at 675)). At that point,

our constitutional jurisprudence required the detectives, as a precondition to

any interrogation, to provide Wint with the attorney he requested. See

Roberson,  486 U.S.  at 687; see also State v. Wright,  97 N.J. 113, 126 (1984).

      After the Pennsylvania detectives advised Wint of his right to the

presence of a lawyer, Wint responded, “I want him to sit here while we talk.”

Wint repeated five more times that he did not want to answer questions

without a lawyer, and then the detectives ceased the interrogation. With two

sets of interrogating officers, Wint made clear that he wanted to avail himself

of his constitutional right to counsel.

      The record does not support the trial court’s finding that Wint initiated a

conversation with the Pennsylvania detectives in which Wint agreed to speak

with them at some later time without counsel. Like the Appellate Division, we

cannot defer to factual findings that are not “supported by sufficient credible

evidence in the record” and therefore are clearly mistaken. State v. Elders,


                                          33
 192 N.J. 224, 243-44 (2007) (citation omitted); see also State v. S.S.,  229 N.J.
 360, 381 (2017).

      Detective McDonough’s testimony at the motion hearing left no doubt

that the Pennsylvania detectives initiated a conversation with Wint as he left

the interrogation room and stood in the hallway of the Camden County

Prosecutor’s Office. Undeterred, the detectives initiated a new colloquy by

saying, “[W]hen we get back to Bucks County we can talk about this again.”

To that prompting, defendant responded, mimicking their words, “Yeah, I’ll

talk to you when we get back to Bucks County.” A similar exchange occurred

three months later when the detectives visited Wint in the Camden County jail

to secure a DNA sample. Again, according to Detective McDonough, the

detectives initiated the conversation by saying to Wint they would talk with

him after his transfer to Pennsylvania -- “when he got back to Bucks [County]”

-- and Wint responded as he had earlier, “Yeah, I’ll talk to you when I get back

to Bucks.” Based on the undisputed evidence before us, Wint did not

“initiate[] further communication, exchanges, or conversations with the police”

to open the door to an interrogation without counsel. Edwards,  451 U.S.  at
 485; see also State v. Alston,  204 N.J. 614, 620 (2011) (stating suspect must

“initiate[] further communication sufficient to waive the right to counsel”

(citing Edwards,  451 U.S. at 484-85)).


                                         34
      Wint remained in continuous pre-indictment, pretrial custody in the

Camden County jail when he was transported to the Warminster police station

in Pennsylvania where the same detectives -- who had interrogated him six

months earlier when he had requested the presence of counsel -- interrogated

him again without providing him with counsel. The detectives read Wint his

Miranda rights, which this time he waived, and Wint made an incriminating

admission -- one that he disputed at trial -- concerning the Camden County

murder charge.

      We conclude that Wint did not experience a break in custody within the

intendment of Shatzer before he was interrogated without counsel in

Pennsylvania, and therefore the Edwards presumption of involuntariness

applies to the admission Wint made to the detectives. For break-in-custody

purposes, Shatzer distinguished the very different worlds and circumstances of

a pretrial detainee and a convicted inmate.

      A pre-indictment, pretrial detainee’s status is conditional and of limited

duration. Changed circumstances may result in his release from pretrial

detention. Under the New Jersey Criminal Justice Reform Act, “[t]he eligible

defendant shall not remain detained in jail for more than 90 days, not counting

excludable time for reasonable delays . . . , prior to the return of an

indictment.”  N.J.S.A. 2A:162-22(a)(1)(a). As such, extended pre-indictment


                                        35
detainment should be the exception, not the rule. Indictment triggers the onset

of the formal adversarial judicial process, which in turn entitles a defendant to

the assistance of counsel under the Sixth Amendment, Kirby v. Illinois,  406 U.S. 682, 688-89 (1972), as well as Article I, Paragraph 10 of the New Jersey

Constitution, State v. Sanchez,  129 N.J. 261, 274-78 (1992). “[A]fter the

return of an indictment, prosecutors and their representatives should not

initiate conversations with an uncounselled defendant.” Id. at 277.5 If

returning a pre-indictment detainee to the county jail after he has requested

counsel during an interrogation counted as a break in custody, then the

prosecutor might have a perverse incentive to delay an indictment’s return to

allow repeated attempts to interrogate a defendant every couple of weeks.

      During the pre-indictment period, a pretrial detainee remains in custody

while his criminal charges are under investigation, and his interrogators appear

to control his fate, including the final charges he might face and the sentence

he might receive if convicted. See Shatzer,  559 U.S.  at 106, 114. During this

time, “he remains cut off from his normal life and companions, [and] 'thrust

into’ and isolated in an 'unfamiliar,’ 'police-dominated atmosphere.’” Id. at



5
  Sanchez also cites as authority for this proposition RPC 4.2, which generally
bars a lawyer from communicating with a person the lawyer knows is
represented by counsel.  129 N.J. at 277 (citing RPC 4.2 (1992) (amended
2003)).

                                       36
106 (quoting Miranda,  384 U.S. at 456-57). When a pretrial detainee is

released into the free world he experiences a break in custody. Id. at 110. He

is no longer “isolated,” he returns “to his normal life for some time before the

later attempted interrogation,” he is “able to seek advice from an attorney,

family members, and friends,” and “he knows from his earlier experience that

he need only demand counsel to bring the interrogation to a halt.” Id. at 107-

08; see also State v. Wessells,  209 N.J. 395, 413 (2012) (holding that nine days

in community was insufficient break in custody to dissipate coercive taint of

initial interrogation).

      As Shatzer explained, convicted inmates stand in a very different

position because their world is prison. After they are interrogated, “they are

released back into the general prison population,” where “they return to their

accustomed surroundings and daily routine,” and where “they regain the

degree of control they had over their lives prior to the interrogation.”  559 U.S. 
at 113. Unlike pretrial detainees, “[t]heir detention . . . is relatively

disconnected from their prior unwillingness to cooperate in an investigation.

The former interrogator has no power to increase the duration of incarceration ,

which was determined at sentencing.” Ibid.

      We now hold that pre-indictment, pretrial detainment does not qualify as

a break in custody under Shatzer. Wint’s return to his pre-indictment, pretrial


                                         37
custody in the Camden County jail after two interrogations during which he

invoked his right to counsel was not a return to normalcy. As the United

States Supreme Court observed in Minnick, “the coercive pressures that

accompany custody . . . may increase as custody is prolonged.”  498 U.S.  at
 153. In the Camden County Prosecutor’s Office, in two separate

investigations, Wint requested the presence of counsel not less than six times.

As Justice Stevens observed in his concurring opinion in Shatzer, “[w]hen

police have not honored an earlier commitment to provide a detainee with a

lawyer, the detainee likely will 'understan[d] his (expressed) wishes to have

been ignored’ and 'may well see further objection as futile and confession

(true or not) as the only way to end his interrogation.’”  559 U.S.  at 121-22

(second alteration in original) (quoting Davis v. United States,  512 U.S. 452,

472-73 (1994) (Souter, J., concurring in the judgment)). Had the Pennsylvania

detectives provided Wint with the presence of counsel earlier promised, they

could have attempted a new round of interrogation.

      Providing Wint with the counsel he requested also would have ensured

the integrity of the interrogation process. See Minnick,  498 U.S.  at 152 (citing

Miranda,  384 U.S. at 466). The presence of a lawyer may have foreclosed a

dispute over the precise words spoken by Wint -- whether he said he

“committed a murder” or “did a shooting.” A lawyer may have insisted on the


                                       38
detective audio recording rather than handwriting Wint’s responses or may

have corrected any error in the detective’s transcription. The benefit of

counsel is not only to advise the suspect, but also to help guarantee that the

“police interrogation conform[s] to the dictates of the [Fifth Amendment].”

Ibid. (second alteration in original) (quoting Miranda,  384 U.S. at 466).

      Because the detectives initiated the interrogation and did not provide

counsel to Wint, Edwards requires suppression of the incriminating statement

made to the detectives concerning the shooting in Camden. We further hold

that the admission of Wint’s statement -- “I committed a murder in Camden” --

was not harmless error and was clearly capable of causing an unjust result.

See R. 2:10-2. “The test for determining whether an error is harmless 'is

whether there is a reasonable possibility that the evidence complained of might

have contributed to the conviction.’” Sanchez,  129 N.J. at 278 (quoting

Chapman v. California,  386 U.S. 18, 23 (1967)).

      The State charged defendant with committing murder by purposely or

knowingly shooting to death Kevin Miller. See  N.J.S.A. 2C:11-3(a)(1) and (2)

(defining murder). No eyewitness testified to the confrontation that led to

Miller’s death other than Wint. Wint claimed that he acted in self-defense,

relying on the account he gave to his friend several days after the shooting and

on his own testimony of how he was “jumped” by Miller and his cohorts. In


                                       39
summation, the prosecutor stated that Wint’s admission was “very important,”

and repeatedly argued that Wint’s words offered both “a glimpse into his mind

and . . . a window into his soul” and a version of “what really happened.”

Wint’s conviction of passion/provocation manslaughter,  N.J.S.A. 2C:11-

4(b)(2), did not mitigate the damage inflicted on Wint’s self-defense claim.

Because the erroneous admission of Wint’s statement was not harmless, Wint

is entitled to a new trial in the homicide case. Because the erroneous

admission of the statement was not relevant to the certain-persons weapons

possession and resisting-arrest convictions, those convictions stand.

      In light of our determination that, as a matter of law, no break in custody

occurred, the Appellate Division erred in remanding to the trial court on that

issue. Additionally, the Appellate Division erred in finding that an Edwards

violation is subject to an attenuation analysis. The case law does not support

that proposition. See Roberson,  486 U.S. at 681-82; see also Minnick,  498 U.S.  at 159. Last, we need not address in this case whether the Edwards

presumption of involuntariness is “eternal” for pretrial detainees, who may

spend years confined awaiting trial in the custody of a county jail.

      In summary, at a new trial, the State may not admit as substantive

evidence Wint’s statement to the Pennsylvania detectives. See McNeil,  501 U.S.  at 177 (stating that where police “initiate an encounter in the absence of


                                       40
counsel (assuming there has been no break in custody), the suspect’s

statements are presumed involuntary and therefore inadmissible as substantive

evidence at trial”).

                                         V.

      We next dispose of two remaining issues.

      Because Wint must be retried on the charge of passion/provocation

manslaughter, we need not address whether the prosecutor crossed the line in

summation by arguing that the jury draw an adverse inference from Wint’s

flight. Although flight is in the case and is fair argument, we caution the

prosecutor against using language that treads on Wint’s right against self-

incrimination, such as stating, “Does he stay and talk to the police?” See

 N.J.S.A. 2A:84A-19 (“[E]very natural person has a right to refuse to disclose

. . . to a police officer or other official any matter that will incriminate him

. . . .”); N.J.R.E. 503 (same).

      Last, we reject Wint’s argument that the trial court improperly dismissed

two deliberating jurors and replaced them with alternates. One juror evidently

knew a family member of the victim in the courtroom and mentioned that fact

to other jurors. The juror who made the observation and another juror to

whom she related information expressed an inability to remain impartial.

After conducting a voir dire of all the jurors, the court replaced those two


                                         41
compromised jurors with alternates. We agree with the Appellate Division

that the trial court did not abuse its discretion in denying Wint’s motion for a

mistrial.

                                      VI.

      For the reasons expressed, we reverse the judgment of the Appellate

Division and remand for a new trial on passion/provocation manslaughter.6

We affirm the judgments on the certain-persons weapons possession and

resisting-arrest convictions.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
and TIMPONE join in JUSTICE ALBIN’s opinion. JUSTICES FERNANDEZ-
VINA and SOLOMON did not participate.




6
  We note that the conviction for possession of a firearm for an unlawful
purpose was merged into the passion/provocation manslaughter conviction and
therefore, on retrial, may be revived.

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