New Jersey v. Carrion

Annotate this Case

Defendant Jose Carrion appealed his conviction by jury on weapons and drug offenses, as well as assault. Specifically he appealed the denial of his motion to suppress a statement that he made to law enforcement and for which he received Miranda warnings, but that he made after an earlier, unwarned statement. At trial, the prosecution sought to admit an affidavit of Brett Bloom of the State Firearms Investigative Unit, asserting that Bloom searched and found no record that Carrion had a firearm permit. The State asked the court to submit the affidavit as a self-authenticating document under N.J.R.E. 902(k) and under the absence-of-a-public-record exception to the hearsay rule, N.J.R.E. 803(c)(10). Defense counsel objected, arguing that there were hearsay and Confrontation Clause issues. The court found the document both reliable and admissible under N.J.R.E. 902(k) and exceptions to the hearsay rule. The Appellate Division affirmed defendant's conviction and sentence. The New Jersey Supreme Court found the State’s reliance on an affidavit by a non-testifying witness to introduce over defendant’s objection the results of the database search violated defendant’s right to confront the witnesses against him. And, under the totality of the circumstances, Carrion’s second statement should have been suppressed because the Miranda warnings issued to Carrion prior to his second statement to police were insufficient in these circumstances to ensure that his waiver of rights was voluntary and knowing. Because of its holding on the suppression issue, the Court could not conclude that the denial of defendant’s right to confrontation constituted harmless error.

SYLLABUS

This syllabus is not part of the Court’s opinion. 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. Jose Carrion (A-14-20) (084390)

Argued October 13, 2021 -- Decided December 27, 2021

LaVECCHIA, J., writing for a unanimous Court.

This appeal, and the companion case of State v. Hedgespeth, ___ N.J. ___ (2021),
have in common an issue concerning the right to confrontation in the context of the
admission of an affidavit attesting that a search of a State firearm registry revealed no
lawful permit for an individual’s possession of a handgun. Defendant Jose Carrion also
raises a suppression issue. He appeals the denial of his motion to suppress a statement
that he made to law enforcement and for which he received Miranda warnings, but that he
made after an earlier, unwarned statement.

In June 2012, Newark law enforcement secured a warrant for Carrion’s arrest,
based on allegations that Carrion shot a victim in the ankle. Five officers executed the
warrant. Carrion’s wife let them into the home, where they placed handcuffs on Carrion
who was sleeping on the couch; her fourteen-year-old son, Abel, witnessed the arrest.

According to the State’s witnesses, while carrying out the arrest, the officers
observed a “black pouch” with narcotics protruding out of it sitting on a table. On
spotting the pouch, a detective examined it, saw drugs and a gun inside it, and alerted his
fellow officers to the presence of a weapon. The officer testified that Carrion admitted to
owning the bag without being asked any questions. Carrion’s wife and her son, however,
testified that the officers asked Carrion whether he had anything in the house and told
Carrion that if he did not admit ownership of the bag, DYFS would be contacted about
taking the children from the home. After his arrest, Carrion was transported to the station.

About six hours later, a detective who was not involved in the arrest took a
statement from Carrion after informing him of Miranda rights. Carrion stated that he
understood those rights and read and signed a waiver form. During his interrogation,
Carrion alleged that someone else shot the victim but admitted that the gun was his.

Carrion was indicted on weapons and drug offenses, as well as assault. He moved
to suppress both statements made to the police. He argued that his first statement made
while at his apartment -- admitting ownership of the black pouch containing the gun and
drugs -- should be suppressed because it constituted an interrogation and the officers
1
failed to give him Miranda warnings prior to their questioning. As for his later recorded
statement at the police station, he argued that too should be suppressed as an unlawful
extension of the prior failure to provide Miranda warnings. The court granted Carrion’s
motion to suppress the first statement but denied his motion to suppress the second.

At trial, the prosecution sought to admit an affidavit of Brett C. Bloom of the State
Firearms Investigative Unit, asserting that Bloom searched and found no record that
Carrion had a firearm permit. The State asked the court to submit the affidavit as a self-
authenticating document under N.J.R.E. 902(k) and under the absence-of-a-public-record
exception to the hearsay rule, N.J.R.E. 803(c)(10). Defense counsel objected, arguing
that there were hearsay and Confrontation Clause issues. The court found the document
both reliable and admissible under N.J.R.E. 902(k) and exceptions to the hearsay rule.

Carrion was convicted and sentenced. The Appellate Division affirmed, and the
Court granted certification. 244 N.J. 280 (2020); 244 N.J. 503 (2020).

HELD: The State’s reliance on an affidavit by a non-testifying witness to introduce over
defendant’s objection the results of the database search violated defendant’s right to
confront the witnesses against him. And, under the totality of the circumstances,
Carrion’s second statement should have been suppressed because the Miranda warnings
issued to Carrion prior to his second statement to police were insufficient in these
circumstances to ensure that his waiver of rights was voluntary and knowing. Because of
its holding on the suppression issue, the Court cannot conclude that the denial of
defendant’s right to confrontation constituted harmless error. For the purposes of future
matters, to ensure protection of defendants’ confrontation rights and the orderly
production of essential witnesses in judicial proceedings, the Court addresses a method to
avoid confrontation violations in these settings.

1. The Federal and State Constitutions provide that in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him. In
Crawford v. Washington, the United States Supreme Court announced a three-part test
for assessing a violation of the Confrontation Clause. The test asks (1) whether the
statement was testimonial, (2) whether the witness was unavailable to testify, (3) and
whether there was a prior opportunity for cross-examination. 541 U.S. 36, 68 (2004). It
is the first prong of that test -- whether Bloom’s affidavit attesting to no record of Carrion
possessing a gun permit was testimonial -- that is at issue. Crawford identified
“formulations of [the] core class of testimonial statements,” including “material such as
affidavits . . . that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecutorially” or “at a
later trial.” Id. at 51-52. In Melendez-Diaz v. Massachusetts, the Supreme Court held
that affidavits reporting the results of forensic analysis are “testimonial,” rendering the
affiants “witnesses” subject to the defendant’s Sixth Amendment right to confrontation.
557 U.S. 305, 307, 310 (2009). (pp. 14-17)
2
2. The Court notes that although there is some ambiguity about who must testify about
out-of-court data analysis, there is no ambiguity here because no one testified regarding
the affidavit. The firearm license database -- raw data, collected for a neutral
administrative purpose -- is a non-testimonial “document” for Confrontation Clause
purposes. But the creation of a document attesting to an interpretation or search of that
data -- for the sole purpose of prosecuting a defendant -- is testimonial. With only the
affidavit, and with no opportunity to question the officer knowledgeable about how the
search of the database was performed, Carrion could not explore whether the officer used
the correct date of birth, name, or other identifying information to generate a correct
search of the database, and what information that search produced. Because the affidavit
attesting to Bloom’s search of the database is testimonial, and in light of the fact that
Bloom did not testify and was not previously subjected to cross-examination, Carrion’s
right to confrontation was violated. (pp. 17-20)

3. The confrontation error here was not harmless because the absence of a permit is an
essential element of the weapons-possession offense with which Carrion was charged: to
obtain a conviction, the State would have to prove that the gun belonged to him and that
he did not possess the appropriate permit. The constitutional confrontation right entitled
defendant, who raised a timely objection, to claim error in his trial. (pp. 20-22)

4. Going forward, to help alleviate the administrative concerns of the State, the Court
adopts the practice of notice and demand for the presentation of a State witness to testify
to the search of the firearm permit database. That process will protect a defendant’s right
to confrontation. By not demanding the witness’s testimony, the defendant waives his
confrontation right. In many cases, the defendant may conclude the production of the
witness is unnecessary. At the same time, a notice requirement will promote
administrative and judicial efficiency. The Court has adopted such useful practices
before and has seen their benefits in other settings that include Crawford considerations.
E.g., State v. Wilson, 227 N.J. 534, 553-54 (2017) (creating a notice and demand
procedure for certified survey maps). The Court refers the matter to the Criminal
Practice Committee to study the issue generally and propose a court rule. (pp. 22-23)

5. Turning to defendant’s suppression motion, the Court notes that one of the most
fundamental rights protected by both the Federal Constitution and state law is the right
against self-incrimination. In Miranda v. Arizona, the Supreme Court put safeguards in
place to protect the privilege against self-incrimination and respond to the “inherently
compelling pressures which work to undermine the individual’s will to resist and to
compel [an individual subject to custodial interrogation] to speak where he would not
otherwise do so freely.” 384 U.S. 436, 467 (1966). Although defendants may waive
“effectuation of” their Miranda rights, the waiver must be one that “is made voluntarily,
knowingly, and intelligently.” Id. at 444. Here, the Court must decide whether a
confession, given after Miranda warnings, can be admissible when the suspect has
previously been subjected to unwarned questioning in which he confessed. (pp. 23-25)
3
6. A natural concern in those circumstances is that “after an accused has once let the cat
out of the bag by confessing, no matter what the inducement, he is never thereafter free of
the psychological and practical disadvantages of having confessed.” United States v.
Bayer, 331 U.S. 532, 540-41 (1947). In State v. O’Neill, the Court fashioned a test for
determining the admissibility of such statements: to assess how effectively the warnings
in the second interrogation functioned, courts should consider all relevant factors,
including (1) the extent of questioning and the nature of any admissions made by
defendant before being informed of his Miranda rights; (2) the proximity in time and
place between the pre- and post-warning questioning; (3) whether the same law
enforcement officers conducted both the unwarned and warned interrogations; (4)
whether the officers informed defendant that his pre-warning statements could not be
used against him; and (5) the degree to which the post-warning questioning is a
continuation of the pre-warning questioning. 193 N.J. 148, 180-81 (2007). The O’Neill
decision pointed out that factor four, when found to be present, should receive “great
weight” because “[p]roviding that information would strongly suggest that the defendant
made any post-warning incriminating statements knowingly, voluntarily, and
intelligently.” Id. at 181. But the O’Neill Court took pains to stress that no single factor
is determinative. See id. at 181-82. (pp. 25-27)

7. Underscoring the Court’s emphasis in O’Neill that it was not creating a bright line, the
Court rejects competing arguments by amici in this case that would render factor four
conclusive. Applying all of the O’Neill factors in light of the totality of the
circumstances, and relying on the trial court’s factual findings, the Court determines that
the first factor favors suppression because Carrion faced two sources of psychological
pressure not to assert his Miranda rights in his second interview: the fact that he had
already let the cat out of the bag in his first statement, and the potential belief that the
threat to call DYFS, unless he admitted ownership of the black bag, was still in effect.
The Court notes that the first, second, and fifth factors all favor admission of the second
statement, but that the fourth factor, like factor one, favors suppression. The Court
explains in detail why, when considered qualitatively, factors one and four, in this
particular case, outweigh the other factors. (pp. 28-37)

8. The Court concludes by noting that it is rare that an unconstitutionally secured
confession is deemed harmless beyond a reasonable doubt. Admission of Carrion’s
second statement was not harmless in this case. (p. 38)

REVERSED and REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
LaVECCHIA’s opinion.

4
SUPREME COURT OF NEW JERSEY
A-
14 September Term 2020
084390

State of New Jersey,

Plaintiff-Respondent,

Jose Carrion, a/k/a
Jose Carrison,

Defendant-Appellant.

On certification to the Superior Court,
Appellate Division.

Argued Decided
October 13, 2021 December 27, 2021

John P. Flynn, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John P. Flynn, of counsel and on the
briefs, and Gilbert G. Miller, Designated Counsel, on the
briefs).

Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
respondent (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans, of
counsel and on the briefs).

William J. Munoz argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey

1
(Whipple Azzarello, attorneys; William J. Munoz, on the
brief).

Amanda G. Schwartz, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Andrew J. Bruck, Acting Attorney General,
attorney; Amanda G. Schwartz, of counsel and on the
brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This appeal, and the companion case of State v. Hedgespeth, ___ N.J.

___ (2021), have in common an issue concerning the right to confrontation in

the context of the admission of an affidavit attesting that a search of a State

firearm registry revealed no lawful permit for an individual’s possession of a

handgun. See N.J.S.A. 2C:39-5(b) (making it an offense to possess a handgun

without a permit as provided in N.J.S.A. 2C:58-4).

In this matter, defendant Jose Carrion contends the trial court erred in

admitting information contained in an affidavit from a non-testifying detective

of the Firearms Investigation Unit of the Department of Law and Public Safety

(DLPS). The admitted evidence showed that the non-testifying detective’s

search of the database revealed no permit existed authorizing Carrion to

lawfully possess a handgun when one was seized by police from his home.

Applying the test from decisions interpreting the federal Confrontation Clause,

which we have adopted in our state confrontation jurisprudence, we conclude

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that, while the raw data contained in the database listing issued firearm permits

is not “testimonial” for purposes of a confrontation-right analysis, statements

about the search of that database for information specific to defendant for use

in his prosecution is testimonial. Here, the State’s reliance on an affidavit by a

non-testifying witness to introduce over defendant’s objection the results of

that search violated defendant’s right to confront the witnesses against him.

Carrion also raises a suppression issue. He appeals the denial of his

motion to suppress a statement that he made to law enforcement and for which

he received Miranda1 warnings, but that he made after an earlier, unwarned

statement. Specifically, defendant contends that State v. O’Neill, 193 N.J. 148

(2007), and its instructions for analyzing the voluntariness of his waiver of

rights was misapplied in the two-step, unwarned-then-warned interrogation

setting that led to his incriminating second statement. Under the totality of the

circumstances, we conclude that his second statement -- in which he accepted

responsibility for, among other things, the weapon found in his home -- also

should have been suppressed. The Miranda warnings issued to Carrion prior to

his second statement to police were insufficient in these circumstances to

ensure that his waiver of rights was voluntary and knowing.

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

3
Because of our holding on the suppression issue, we cannot conclude

that the denial of defendant’s right to confrontation constituted harmless error.

For the purposes of future matters, to ensure protection of defendants’

confrontation rights and the orderly production of essential witnesses in

judicial proceedings, we address a method to avoid confrontation violations in

these settings.

On June 25, 2012, Newark law enforcement officers secured a warrant

for Carrion’s arrest. The warrant was based on allegations that on June 19,

Carrion shot Juan Rivera in the ankle over a $420 debt. For purposes of this

appeal, we focus on the events associated with the execution of Carrion’s

arrest, his statements to police, and the confrontation issue that arose at trial.

1. The Arrest

Pursuant to testimony presented by the State at the suppression hearing,

five officers from the Newark Police Department executed the arrest warrant

for Carrion on June 28, 2012. The officers knocked on Carrion’s apartment

door, and his wife, Biomaryluz Gonzalez, answered. She told the officers that

Carrion was inside. The officers entered the home and placed handcuffs on

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Carrion who was sleeping on the couch. Gonzalez’s fourteen-year-old son,

Abel Trevino, who is not Carrion’s biological son, witnessed the arrest.

According to the State’s witnesses, while carrying out the arrest, the

officers observed a “black pouch” with narcotics protruding out of it sitting on

a table. On spotting the pouch, Detective Maldonado examined it, saw drugs

and a gun inside it, and alerted his fellow officers to the presence of a weapon.

According to Maldonado’s testimony, once the officers found the pouch,

Carrion began “shaking” and “owned up to it, he said it was his and he wanted

to kiss his son, because, you know, he didn’t want to get handcuffed in the

presence of his child.” Maldonado testified that he did not ask Carrion any

questions after Carrion admitted to owning the pouch, nor did he make any

promises or threats to Carrion in exchange for Carrion admitting that the pouch

was his.

Gonzalez and her son, Abel, also testified at the suppression hearing.

Gonzalez explained that at the time of the arrest she was living with Carrion

and her three children, the youngest of whom (two years old at the time of the

arrest) is Carrion’s biological son. She testified that upon handcuffing Carrion,

the officers asked Carrion “if he had something in the house.” And, as she put

it, the officers told Carrion that “he had to tell [the officer] because, if not, if

5
he didn’t say, they were going to call DY[FS] 2 and take my children, and also,

they were going to get me involved in this case.” Gonzalez testified that the

officers were moving items in the house as they were looking around, and

eventually, Carrion “told them that there was something behind the green

couch.” According to Gonzalez, the “black purse,” as she described it, was not

found until the officers moved the couch.

Abel testified that he was sleeping upstairs when the officers entered the

home. Upon hearing them, he came downstairs to the first floor and saw the

officers looking around, which ultimately resulted in them finding “a bag.”

According to Abel, upon finding the bag, the officers began “trying to force

my mom, my father, both of them, saying to admit” that the bag was Carrion’s,

otherwise the officers would take Abel and his siblings “to DYFS.”

2. The Subsequent Interrogation and Charges

The details concerning Carrion’s police station interrogation are derived

from the suppression hearing as well as from defendant’s trial, at which the

full interview was admitted into evidence.

2 As of June 29, 2012, the Division of Youth and Family Services (DYFS) was
renamed the Division of Child Protection and Permanency (DCPP). L. 2012,
c. 16, § 20 (codified at N.J.S.A. 9:3A-10(b)). Because at the time of Carrion’s
arrest, DCPP was still DYFS (albeit for only one more day), and the witnesses
referred to the agency as such, we will do the same.

6
About six hours after Carrion was arrested at his home and transported

to the police station, Detective Lydell James, who was not involved in the

arrest, took a statement from him at 11:50 a.m. James began the interview by

reading Carrion his Miranda rights. Carrion stated that he understood those

rights; he then read a Miranda form, acknowledged that he understood the

waiver provision of the form, initialed the waiver, and signed the form.

Carrion also acknowledged that he has a high school diploma and two years of

college, and that he can read, write, and speak English.

During his interrogation, Carrion alleged that someone else shot Rivera;

however, he admitted that the gun found in his apartment was his, stating that

he bought it from a friend and had not obtained a license for it.

Thereafter, an Essex County Grand Jury indicted Carrion for second-

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

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

degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(2); second-degree

possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-

4.1(a); fourth-degree unlawful possession of a firearm without a permit,

N.J.S.A 2C:39-10(a);3 three counts of third-degree possession of CDS (heroin,

3
The indictment charged defendant in count five with second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b), but the count was later amended
to the fourth-degree offense.
7
oxycodone, and 1-phenyl 2-1 pentanone), N.J.S.A. 2C:35-10(a)(1); three

counts of third-degree possession of CDS with the intent to distribute, N.J.S.A.

2C:35-5(a)(1); and three counts of third-degree possession of CDS within

1,000 feet of a school, N.J.S.A. 2C:35-7.

Prior to trial, defendant filed a motion to suppress both statements he

made to the police. He argued that his first statement made while at his

apartment -- admitting ownership of the black pouch containing the gun and

drugs -- should be suppressed because it constituted an interrogation and the

officers failed to give him Miranda warnings prior to their questioning. As for

his later recorded statement at the police station, he argued that too should be

suppressed as an unlawful extension of the prior failure to provide Miranda

warnings.

After hearing testimony from Detectives James and Maldonado, as well

as Gonzalez and Abel, the trial court found the detectives’ testimony to be

credible, Gonzalez’s testimony to be “partially credible,” and Abel’s testimony

to be “minimally credible.”

The court first determined that Carrion’s initial statement to police while

in the apartment should be suppressed. The court found that the statement was

the product of a custodial interrogation and that the officers should have

8
administered Miranda warnings. In making that determination, the court stated

it was giving defendant “the benefit of the doubt” that the officers’ reference to

DYFS becoming involved -- to which both Gonzalez and Abel testified -- was

a motivating consideration. The court’s suppression of Carrion’s statement at

the apartment is not on appeal here.

As to Carrion’s second statement -- the statement taken by Detective

James at the police station in which Carrion admitted ownership of the gun and

that the gun was unlicensed -- the court noted that there was no question that

defendant received his Miranda warnings prior to that custodial interrogation.

The court therefore framed the issue as whether defendant knowingly and

intelligently waived his rights. Considering the totality of the circumstances,

the trial court found Carrion’s waiver to be voluntary. The court identified the

factors it found persuasive in reaching its decision.

Factors, again, that I have considered, the
defendant’s -- the time of the interrogation, defendant’s
education. I will note that the -- the interview was
short. It lasted approximately 12 minutes. Mr.
Carrion’s age has been considered. He’s 36 years old
at the time of the statement. His education has been
considered. He has a high school diploma. He also has
two years of college, and he said he can read and write
English. He told Detective James that he understood
him and he understood the Miranda waiver form.

Furthermore, it is appropriate for the Court to
consider a defendant’s previous encounters with law
enforcement in determining the voluntariness of the
9
defendant’s waiving the Miranda. . . . As such, I will
note that Mr. Carrion has had previous encounters with
law enforcement. He has one prior conviction.

The court further noted that defendant told James he was not threatened,

coerced, made any promises, or pressured to give the statement and that

Carrion sounded very comfortable and calm throughout the statement. In

addition, the court noted that the statement was provided at 11:55 a.m., several

hours after the arrest, and thus was a “separate event” from the original

statement in the apartment.

From the totality of those circumstances, the court concluded that the

State had met its burden of proving, beyond a reasonable doubt, that

defendant’s waiver of rights before his second statement was knowing and

voluntary. Accordingly, the court denied defendant’s motion to suppress his

second statement.

At trial, during the presentation of the State’s case, the prosecution

sought to admit an affidavit of Brett C. Bloom of the DLPS Firearms

Investigative Unit, asserting that Bloom searched and found no record that

Carrion had a firearm permit. The State asked the court to submit the affidavit

as a self-authenticating document under N.J.R.E. 902(k) and under the

absence-of-a-public-record exception to the hearsay rule, N.J.R.E. 803(c)(10).

10
Defense counsel objected, arguing that there were hearsay and

Confrontation Clause issues. The defense emphasized that the document was

created for the primary purpose of being used in a prosecution and that it

required authentication by a live witness. Turning aside the objections, the

court found the document both reliable and admissible under N.J.R.E. 902(k)

and exceptions to the hearsay rule. Portions of the document were allowed to

be read into the record; however, it appears that the document itself was not

entered into the record. 4

On February 8, 2017, the jury found defendant guilty on all counts

except for third-degree attempted aggravated assault, for which defendant was

convicted of the lesser-included offense of fourth-degree aggravated assault,

and two of the drug possession charges, for which he was acquitted. The court

sentenced defendant to an aggregate term of eighteen years in prison with ten

years of parole ineligibility.

Defendant appealed, contending that the trial court (1) erred in denying

his motion to suppress the second statement taken at the police station and (2)

violated his confrontation rights in admitting the affidavit of a non-testifying

4
The State acknowledged at oral argument that the document was not entered
into the record. Therefore, we refer only to the transcript at trial where
portions were read aloud.
11
detective who affirmed that no record of a permit for defendant’s handgun

existed.

In an unpublished opinion, the Appellate Division affirmed. Applying

this Court’s test for assessing a “two-step interrogation case,” announced in

O’Neill, 193 N.J. at 180-81, the Appellate Division held that Carrion’s post-

warning statement was admissible. The Appellate Division noted that the post-

warning questioning took place six hours after the first unwarned questioning

and an officer unconnected with the arrest conducted the subsequent interview

in which Carrion received Miranda warnings and waived them. In the

Appellate Division’s view, James’s failure to inform Carrion that his pre-

warning statement could not be used against him did not outweigh the other

O’Neill factors.

Second, the Appellate Division affirmed the trial court’s evidentiary

ruling that the no-permit affidavit was self-authenticating under N.J.R.E.

902(k) and admissible under the absence-of-a-public-record hearsay exception,

N.J.R.E. 803(c)(10). The court further held that “[e]ven if the affidavit was

admitted in error, such an error was harmless as defendant admitted he

received the gun from a friend and never registered the weapon.” The

appellate court did not address defendant’s confrontation right argument.

12
We granted defendant’s petition for certification, initially limited to the

Miranda-based suppression issue. 244 N.J. 280 (2020). Thereafter, on a

motion for reconsideration, we granted certification on defendant’s claimed

confrontation violation. 244 N.J. 503 (2020). We also granted amicus status

to the Association of Criminal Defense Lawyers (ACDL) and to the Attorney

General.

II.

We begin by addressing whether defendant’s confrontation rights were

violated by the State’s admission of an affidavit of a non-testifying witness

attesting to having conducted a search of the State’s firearm registry database

-- a search that produced no evidence of a handgun permit issued to defendant.

According to defendant, this document is testimonial because it was

produced in anticipation of the prosecution against him. He argues that an

application of the principles set forth in Melendez-Diaz v. Massachusetts

supports his right to confront the preparer of the testimonial document where

the prosecution seeks to admit a “clerk’s certificate attesting to the fact that the

clerk had searched for a particular relevant record and failed to find it.” 557 U.S. 305, 323 (2009). Defendant’s position is supported by the ACDL.

13
The State, on the other hand, distinguishes Melendez-Diaz, and urges

this Court to find persuasive out-of-state authority that held that similar

affidavits were non-testimonial for confrontation purposes. The State also

asserts that if its position is in error, the error here is harmless because Carrion

admitted to possessing the gun without a permit in his second statement to

police. The Attorney General supports the State’s arguments on this issue.

In essentially identical language, the Sixth Amendment to the United

States Constitution and Article I, Paragraph 10 of the New Jersey Constitution

“provide that '[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him.’” State v. Wilson, 227 N.J. 534, 544 (2017) (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10).

The Confrontation Clause applies to “witnesses against the accused,” or those

who “bear testimony,” which is a “solemn declaration or affirmation made for

the purpose of establishing or proving some fact.” Crawford v. Washington,

541 U.S. 36, 51 (2004) (quotations omitted). In Crawford, the United States

Supreme Court announced a three-part test for assessing a violation of the

Confrontation Clause. 5

5
This Court has had multiple occasions to examine Crawford and the series of
Supreme Court decisions that followed. Crawford and its progeny altered the
earlier jurisprudence that had been based on Ohio v. Roberts, 448 U.S. 56, 66
14
The Crawford test asks “whether the statement was testimonial, whether

the witness was unavailable to testify, and whether there was a prior

opportunity for cross-examination.” State v. Michaels, 219 N.J. 1, 17 (2014)

(citing Crawford, 541 U.S. at 68). It is the first prong of that test -- whether

Bloom’s affidavit attesting to no record of Carrion possessing a gun permit

was testimonial -- that is at issue.

Although Crawford did not define “testimonial statements,” it identified

“formulations of [the] core class of testimonial statements,” such as

ex parte in-court testimony or its functional equivalent
-- that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially; extrajudicial statements . . . contained
in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; [and]
statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial.

(1980), which previously tied the constitutional confrontation right to an
examination of a statement’s reliability. Our earlier cases applying Crawford,
beginning with State v. Michaels, 219 N.J. 1 (2014), and State v. Roach, 219 N.J. 58 (2014), explored who must testify when confrontation is demanded
concerning results in out-of-court analyses, such as certain laboratory testing,
and later in other settings. E.g., State v. Bass, 224 N.J. 285 (2016) (autopsies);
Wilson, 227 N.J. 534 (survey maps); see also State v. Williams, 219 N.J. 89,
99 (2014) (explaining that a defendant must demand confrontation or the right
will be waived by silence).
15
[Crawford, 541 U.S. at 51-52 (emphasis added)
(citations and quotations omitted).]

In Melendez-Diaz, the Supreme Court addressed whether affidavits

reporting the results of forensic analysis are “testimonial,” rendering the

affiants “witnesses” subject to the defendant’s Sixth Amendment right to

confrontation. 557 U.S. at 307. There, the defendant was arrested, contraband

was seized from him and his codefendants and submitted to a state laboratory

for forensic chemical analysis, and certificates showing the results of the

forensic analysis were submitted into evidence. Id. at 308. The defendant

argued that the certificates were wrongly admitted and that the analysts were

required to testify in person under the Confrontation Clause. Id. at 309.

The Court found that the documents at issue were testimonial, especially

given that the Court’s previous “description of [the 'core class of testimonial

statements’] mentions affidavits twice” and the documents were clearly “'made

for the purpose of establishing or proving some fact.’” Id. at 310 (emphasis

added) (quoting Crawford, 541 U.S. at 51-52).

In responding to the dissent’s suggestion that the affidavit at issue was

analogous to the traditional admission at common law of “a clerk’s certificate

authenticating an official record,” the majority opinion in Melendez-Diaz

pointed out that “[a] clerk could by affidavit authenticate or provide a copy of

an otherwise admissible record, but could not do what the analysts did here:
16
create a record for the sole purpose of providing evidence against a

defendant.” Id. at 322-23. Rather, the majority explained,

Far more probative here are those cases in which the
prosecution sought to admit into evidence a clerk’s
certificate attesting to the fact that the clerk had
searched for a particular relevant record and failed to
find it. Like the testimony of the analysts in this case,
the clerk’s statement would serve as substantive
evidence against the defendant whose guilt depended
on the nonexistence of the record for which the clerk
searched. Although the clerk’s certificate would
qualify as an official record under respondent’s
definition -- it was prepared by a public officer in the
regular course of his official duties -- and although the
clerk was certainly not a “conventional witness” under
the dissent’s approach, the clerk was nonetheless
subject to confrontation.

[Id. at 323 (emphasis added).]

Since Melendez-Diaz, the United States Supreme Court’s Confrontation

Clause jurisprudence has become less clear in certain respects. See generally

Michaels, 219 N.J. at 20-31 (citing Bullcoming v. New Mexico, 564 U.S. 647

(2011), and Williams v. Illinois, 567 U.S. 50 (2012)). That has led states, New

Jersey included, to tread carefully, for example, with respect to forensic lab

evidence and whether one or every analyst involved in a forensic analysis must

testify. See id. at 28-49; see, e.g., Bass, 224 N.J. at 316-19 (taking care, with

respect to testimony involving forensic autopsies, to enable meaningful cross-

17
examination of a witness who is not the original pathologist who performed

the autopsy). At present, our case law permits, as explained succinctly in Bass,

a single, or even substitute, witness to testify and explain the results of an out-

of-court data analysis, when the individual can “provide the independent

'verification of the data and results’ that [were] contemplated in Michaels and

Roach.” Bass, 224 N.J. at 319 (quoting Roach, 219 N.J. at 80).

That said, here, there is no ambiguity to the analysis required because no

one testified regarding the affidavit. As such, the issue is resolved by a

straightforward application of the tenets of Melendez-Diaz, where, similarly,

“no witness was offered to support and be cross-examined” regarding the

challenged report. Michaels, 219 N.J. at 32 (citing Melendez-Diaz, 557 U.S.

at 308-09). The prosecution sought to admit an affidavit that was created, as

Melendez-Diaz put it, “for the sole purpose of providing evidence against a

defendant.” 557 U.S. at 322-23; see also Roach, 219 N.J. at 81 (holding that a

DNA profile created by a forensic scientist from machine-generated data was

testimonial because it was the scientist’s “independent interpretation” of the

raw data that converted the DNA profile “into unmistakably testimonial

material subject to the Confrontation Clause”).

To be clear, an affidavit attesting to the absence of a license created after

a search of the firearm registry database is distinguishable from a previously

18
existing document that was not created for purposes of an individual

defendant’s prosecution. An example of the latter, as we held in Wilson, is a

map created and maintained by a public entity for official purposes other than

prosecution of a specific criminal defendant. See 227 N.J. at 551 (finding that

admission of a map, created years before the commission of the alleged

offenses and not in response to the criminal event, did not violate the

Confrontation Clause). Indeed, another example of a non-testimonial

“document,” as readily conceded by Carrion, is the firearm license database

itself. Such raw data, collected for a neutral administrative purpose, is not

testimonial. Rather, it is the creation of a document attesting to an

interpretation or search of that data -- for the sole purpose of prosecuting a

defendant -- that is testimonial.

The upshot of all this is that a witness was required to explain the

accuracy of the information entered into the database search for the existence

of a firearm permit issued to Carrion, but no such witness was presented. With

only the affidavit, and with no opportunity to question the officer

knowledgeable about how the search of the database was performed, Carrion

could not explore whether the officer used the correct date of birth, name, or

other identifying information such as a social security number in order to

19
generate a correct search of the database, and what information that search

produced.

Because the affidavit attesting to Bloom’s search of the database is

testimonial, and in light of the fact that Bloom did not testify and was not

previously subjected to cross-examination, we conclude that Carrion’s right to

confrontation was violated. 6

The State argues in the alternative that any confrontation error here was

harmless because Carrion admitted the gun was his when interrogated at the

police station. We review the admission of that statement in the ensuing

section, but standing alone, without that later statement, this error was not

harmless.

Although N.J.S.A. 2C:39-2(b) creates a statutory presumption in favor of

the State if a defendant fails to present a firearm permit, we have made clear

that “where statutory presumptions are involved, '[t]he jury should be

instructed in terms of inferences which may or may not be drawn from a fact,

the jury being at liberty to find the ultimate fact one way or the other.’” State

v. Ingram, 98 N.J. 489, 499 (1985). We have reinforced that the State still

6
We find the out-of-state case law advanced by the State and Attorney
General unpersuasive. The case law cited either precedes Melendez-Diaz, or,
in our view, does not adhere to the principles of Melendez-Diaz as we have
enforced them.

20
bears the burden of proof on all elements of an offense. Id. at 500; see also

State v. Thomas, 132 N.J. 247, 255 (1993) (noting that “to pass constitutional

muster the presumption must remain permissive in criminal cases”). Here, the

absence of a permit is an essential element of a charged weapons-possession

offense. If the defendant’s statement at the police station is inadmissible, then

the State would have to prove without the statement that the gun found in the

apartment belonged to defendant and that he did not possess the appropriate

permit.

Finally, on this issue, we acknowledge that the State has a valid

administrative concern. Requiring in-person testimony by the person who

conducted a search of firearm registry records that yielded no results under a

defendant’s name for a gun permit -- in every firearm possession prosecution

-- could be burdensome and could lead to administrative inconvenience and

waste of resources. The applicable standard, however, is not whether it is

burdensome to call a police officer to testify about his or her findings. See

Melendez-Diaz, 557 U.S. at 325 (stating that “[t]he Confrontation Clause may

make the prosecution of criminals more burdensome,” but the Clause

nevertheless “is binding, and we may not disregard it at our convenience”).

The confrontation right under the Federal and State Constitutions entitled

21
defendant, who raised a timely objection, to claim error in his trial. See

Wilson, 227 N.J. at 543-44.

Going forward, however, to help alleviate the administrative concerns of

the State, we adopt the practice of notice and demand for the presentation of a

State witness to testify to the search of the firearm permit database. Adoption

of a notice requirement by which a defendant must inform the court and the

State of a demand to have the State produce an appropriate witness will protect

a defendant’s right to confrontation. See State v. Williams, 219 N.J. 89, 99

(2014). By not demanding the witness’s testimony, the defendant waives his

confrontation right. See ibid. In many cases, the defendant may conclude that

the production of the witness is unnecessary. At the same time, a notice

requirement will promote administrative and judicial efficiency. We have

adopted such useful practices before and have seen their benefits in other

settings that include Crawford considerations. E.g., Wilson, 227 N.J. at 553-

54 (creating a notice and demand procedure when a State witness is required to

identify, on certified survey maps, the location of seized drugs used in certain

drug prosecutions requiring proof of proximity to certain public places or

buildings).7

7
The practice was in fact adopted prior to issues arising as a result of
Crawford’s change in confrontation law. In State v. Miller, the Court used a
similar method to reconcile and avoid potential burden-of-proof issues with
22
We refer the matter to the Criminal Practice Committee to study the

issue generally and propose an appropriate court rule.

III.

We turn next to the appellate issue concerning defendant’s suppression

motion, which affects whether the confrontation violation that occurred here

was harmless, as well as whether defendant’s otherwise incriminating

statements should have been allowed to be heard by the jury.

“One of the most fundamental rights protected by both the Federal

Constitution and state law is the right against self-incrimination.” O’Neill,

193 N.J. at 167 (citing U.S. Const. amend. V (“No person . . . shall be

compelled in any criminal case to be a witness against himself . . . .”); 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 . . . .”); N.J.R.E. 503 (same)).

respect to a legislative enactment intended to reduce the administrative
inconvenience of calling State Laboratory analysts as witnesses when a
defendant was not contesting the scientific proof and did not have a desire to
cross-examine on a particular lab report in a drug prosecution case. 170 N.J. 417, 436-38 (2002) (addressing a refinement in procedure for N.J.S.A. 2C:35-
19(c)). Recognizing that the State nonetheless bore the burden of proof on all
elements necessary for the prosecution of charged offenses, the Court
superimposed procedural requirements concerning the statute’s
implementation. Id. at 436.
23
In Miranda v. Arizona, the Supreme Court put safeguards in place to

protect the privilege against self-incrimination and respond to the “inherently

compelling pressures which work to undermine the individual’s will to resist

and to compel [an individual subject to custodial interrogation] to speak where

he would not otherwise do so freely.” 384 U.S. 436, 467 (1966) (requiring that

an “accused must be adequately and effectively apprised of his rights and the

exercise of those rights must be fully honored”). Enforcement of th ose

safeguards is a job of the courts. “A confession or incriminating statement

obtained during a custodial interrogation may not be admitted in evidence

unless a defendant has been advised of his or her constitutional rights.” State

v. Hubbard, 222 N.J. 249, 265 (2015) (citing Miranda, 384 U.S. at 492).

Although defendants may waive “effectuation of” their Miranda rights,

the waiver must be one that “is made voluntarily, knowingly, and

intelligently.” Miranda, 384 U.S. at 444. As expressed in this State, the

standard is that the prosecution “must 'prove beyond a reasonable doubt that

the suspect’s waiver was knowing, intelligent, and voluntary in light of all the

circumstances.’” State v. Tillery, 238 N.J. 293, 316 (2019) (quoting State v.

Presha, 163 N.J. 304, 313 (2000)).

The issue in this appeal concerns a homegrown area of jurisprudence

regarding Miranda rights. We must decide whether a confession, given after

24
Miranda warnings, can be admissible when the suspect has previously been

subjected to unwarned questioning in which he confessed. A natural concern

in those circumstances is that “after an accused has once let the cat out of the

bag by confessing, no matter what the inducement, he is never thereafter free

of the psychological and practical disadvantages of having confessed.” United

States v. Bayer, 331 U.S. 532, 540-41 (1947). Due to the uncertainty under

federal law on how to address that concern, see Oregon v. Elstad, 470 U.S. 298

(1985), and Missouri v. Seibert, 542 U.S. 600 (2004), this Court fashioned its

own test for determining the admissibility of such statements, O’Neill, 193 N.J. at 180-81.

In O’Neill, we expressed our view that the key concern is whether the

warnings provided in the second interrogation “function[] effectively,” so as to

limit the potential psychological burdens that the previous confession may

have placed on the defendant and that could otherwise affect the voluntariness

of the defendant’s waiver. Ibid. We stated that, to assess how effectively the

warnings in the second interrogation functioned,

courts should consider all relevant factors, including:
(1) the extent of questioning and the nature of any
admissions made by defendant before being informed
of his Miranda rights; (2) the proximity in time and
place between the pre- and post-warning questioning;
(3) whether the same law enforcement officers
conducted both the unwarned and warned
interrogations; (4) whether the officers informed
25
defendant that his pre-warning statements could not be
used against him; and (5) the degree to which the post-
warning questioning is a continuation of the pre-
warning questioning. The factual circumstances in
each case will determine the appropriate weight to be
accorded to any factor or group of factors.

[Ibid.]

The O’Neill decision then provided more guidance for courts to use

when considering the non-exclusive list of factors identified above. First, we

pointed out that factor four, when found to be present, should receive “great

weight” because “[p]roviding that information would strongly suggest that the

defendant made any post-warning incriminating statements knowingly,

voluntarily, and intelligently.” Id. at 181.

Yet we took pains to stress that no single factor is determinative:

We emphasize that we are not pronouncing a bright-line
rule. For example, if the officers’ pre-warning
questioning is brief and the defendant’s admissions are
not incriminating or are barely incriminating and if
there is a substantial break in time and circumstances
between the pre- and post-warning interrogations, then
those factors would militate against suppression of the
defendant’s statements. Another circumstance that may
be considered is the defendant’s prior experience with
the criminal justice system. In a two-step interrogation
case, courts must view the totality of the circumstances
in light of the relevant factors and then determine
whether the unwarned questioning and admissions
rendered the Miranda warnings ineffective in providing
a defendant the opportunity to exercise the privilege.

[Id. at 181-82.]
26
The fundaments to the O’Neill Court’s guidance are three-fold:

insistence on consideration of the totality of circumstances; guidance on the

weight that should be given to some of the named factors when certain

factfinding can be made; and judicial humility to recognize that the five factors

identified to assist courts are non-exhaustive.

Against that legal backdrop, defendant argues that the Appellate

Division misapplied the O’Neill factors when considering the circumstances

that connected his first, unwarned statement to his second, warned statement.

Hewing to O’Neill’s five-factor test for considering the totality of

circumstances, defendant emphasizes that the psychological impact of what he

had already let out of the bag was exacerbated by the continuing coercive

impact of being told earlier by the arresting officers that if he did not accept

responsibility for the gun and other contents of the black pouch, his children

would be subjected to DYFS control.

The ACDL again supports defendant’s position, but its argument goes

further. It urges the Court to elevate the impact of one O’Neill factor: factor

four, which asks whether the State told defendant that his unwarned statement

could not be used against him. When that warning is not given, the ACDL

urges us to give heavy, indeed determinative, weight to it and find that the
27
resultant waiver cannot be viewed as voluntary. Here, because Carrion was not

informed that his first statement could not be used against him, the ACDL

maintains that Carrion’s waiver of rights was necessarily involuntary.

The State argues that defendant was not subjected to a traditional two-

step interrogation, but even if viewed as such, it urges us to adhere to a totality

approach that assesses the voluntariness of the waiver in Carrion’s second

statement using the O’Neill factors. The State argues that the circumstances

were correctly assessed in their totality by the trial and appellate courts when

denying defendant’s suppression motion. The State and the Attorney General

strongly urge against making O’Neill’s fourth factor a controlling

consideration. The Attorney General goes further and contends that factor four

is not even relevant in the weighing process when the factual finding does not

favor the State.

In this matter, we are called on to assess the weighing process engaged

in by the trial court, as approved by the Appellate Division. In doing so, we

dispense first with the competing arguments of the amici that, on the one hand,

would render factor four conclusive if favorable to defendant (the ACDL’s

28
position), or on the other hand, would render factor four irrelevant if it does

not help the State (the Attorney General’s position).

The arguments by both amici are extreme. The Attorney General would

essentially do away with the fourth factor, again unless it helps the State. This

Court, however, already gives “great weight” to that factor when a finding is

made that law enforcement did inform a suspect -- before the suspect waived

Miranda rights and provided a second statement -- that a prior unwarned

statement could not be used against the suspect. The ACDL on the other hand

asks for the creation of a bright-line rule that no waiver can pass muster if

factor four is not met, despite this Court’s emphasis in O’Neill that it was not

creating a bright line.

The parties themselves work within the O’Neill factors. We shall do the

same -- and not simply because ordinarily “an amicus must take the case on

appeal as they find it.” State v. Gandhi, 201 N.J. 161, 191 (2010).

Importantly, the amici’s arguments tip the otherwise thoughtfully balanced

O’Neill factors in an unduly State-friendly or defendant-friendly way. Neither

is called for, notwithstanding that this matter presents a close, fact-sensitive

application of O’Neill. We turn to consider the factors, noting that the

resolution of this matter requires particularly careful attention as to (1) which

29
side factor one should favor and (2) whether the totality of the factors favors

admission or suppression of the post-warned statement.

As we consider how the legal standards we have set forth apply to the

facts of this matter, we are mindful of the applicable standard of appellate

review. “[A]n 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,

192 N.J. 224, 243 (2007) (quotation omitted). That said, the interpretation of

law “and the consequences that flow from established facts” are not entitled to

deference and are reviewed de novo. Hubbard, 222 N.J. at 263.

The first O’Neill factor considers “the extent of questioning and the

nature of any admissions made by defendant before being informed of his

Miranda rights.” 193 N.J. at 181. In O’Neill, the defendant was interrogated

without warning for ninety-five minutes, he was in a jail cell and in the police

commander’s office, and he “admitted to playing a role in a scheme to lure a

cab driver into a robbery trap.” Id. at 182. Although we did not explicitly say

so, factor one as analyzed under the facts in O’Neill presented an almost

quintessential example that favored suppression. The questioning was

extensive, intimidating, and the defendant essentially admitted to the crime.

30
Application of the first factor in this appeal, however, is not as clear cut.

First, the initial questioning did not occur in a prison or police station, as it did

in O’Neill; that said, the trial court did find that the first questioning was part

of a custodial interrogation for purposes of suppressing Carrion’s first

statement where Miranda warnings were not provided. And, unlike the

defendant in O’Neill, Carrion did not implicate himself in Rivera’s shooting in

his first statement. Using O’Neill as a point of comparison, the questioning

here could be viewed as shorter in duration and less extensive, and Carrion did

not admit to the most serious crime with which he was charged.

However, during the questioning Carrion admitted to possession of an

illegal gun and drugs, which led to serious charges for which Carrion was later

convicted. Additionally, it is significant that five police officers entered

Carrion’s home for the purpose of arresting him pursuant to a warrant and

promptly handcuffed him as he was awakening, giving rise to a pressured

situation in which he ultimately admitted that the black bag was his.

Adding to the mix is whether the officers made known to Carrion that he

faced the consequence of a call being made to DYFS which would lead to

Carrion’s children being taken away from his wife unless he took

responsibility for the black pouch or purse and its contents. At the suppression

hearing, Carrion’s wife and stepson both testified that statements to that effect

31
were audibly made in their presence. The testifying officer who executed

Carrion’s arrest denied making any threat or similar coercive statement. On

this point, the trial court’s finding, which deserves our deference, is critical to

our analysis. In the context of determining whether the arresting officers

subjected Carrion to an interrogation, the trial court found as follows:

Detective Maldonado again testified that he did not
recall anyone hearing anything about DYFS. That is
his recollection. However, Ms. Gonzalez and Mr.
Trevino testified differently about the specifics. They
did testify consistently that they overheard -- that they
heard officers indicate that they would need to call
DYFS . . . if Carrion did not own up to the contraband.
Now, and I will note that would have been a truthful
statement as they would have had a duty to call DCPP.
However, that inquiry or any such inquiry would have
-- would have been an -- an inquiry that would have
triggered Miranda protection. . . .

So, then it follows if Mr. Carrion was given any
Miranda warning before any such inquiry. And as to
whether there was any such inquiry, I am going to give
the defendant the benefit of the doubt having had two
witnesses who testified that they -- they did hear some
inquiry.

Although the trial court’s factual finding was made under a different

legal analysis -- whether there was an “interrogation” for Miranda purposes --

the court ultimately premised its finding that there was an “inquiry” on

testimony that the arresting officers told Carrion that they would have to call

DYFS unless he admitted to possessing the gun and drugs. We recognize that

32
the point was contested by the parties, but there is a factual finding by the trial

court of a statement evidencing a threat, although it was not called such, about

contacting DYFS. The trial court gave Carrion the benefit of the doubt as to

the fact of the utterance and accepted the reference to DYFS as having been

made. We defer to that finding.

And although the trial court’s finding was not used as part of an O’Neill

analysis, we view that factual finding as probative in our consideration of the

first O’Neill factor. Carrion was not merely subjected to the “inherently

compelling pressures which work to undermine the individual’s will to resist”

and which accompany any custodial interrogation, Miranda, 384 U.S. at 467;

rather, those conditions were augmented by apparent statements that the

agency of government known to take children from their families and into

State care would be contacted unless Carrion took responsibility for the gun

and contraband. Although not precisely on point, the Supreme Court has

recognized the strongly coercive nature of threats to remove a suspect’s

children unless he or she confesses. Cf. Lynumn v. Illinois, 372 U.S. 528, 534

(1963) (holding that a confession was involuntary under the Due Process

Clause where the defendant’s “oral confession was made only after the police

had told her that state financial aid for her infant children would be cut off, and

her children taken from her, if she did not 'cooperate’”). We accordingly hold

33
that those comments, found by the trial court to have been made, added to the

coercive effect of the officers’ efforts to secure an admission from Carrion.

Placing that factual finding under the lens of the first O’Neill factor, it is

evident that Carrion faced two sources of psychological pressure not to assert

his Miranda rights in his second interview: the fact that he had already let the

cat out of the bag in his first statement, and the potential belief that the threat

to call DYFS, unless he admitted ownership of the black bag, was still in

effect. Given that there is no evidence that the possibility of a call to DYFS

was ever revoked or further explained to Carrion, it stands to reason that,

during his second interview, he still feared that the police would call DYFS

and remove his children from their mother unless he continued to accept

responsibility for the gun and contraband in the black pouch found in his

home. Viewed as such, the first factor favors suppression of Carrion’s second

statement.

With that significantly different view of the application of facts to law

(from that of the Appellate Division) with respect to factor one, we consider

next the totality of the circumstances.

The key inquiry when viewing the totality of the O’Neill factors is

whether the second set of Miranda “warnings functioned effectively in

34
providing the defendant the ability to exercise his state law privilege against

self-incrimination.” O’Neill, 193 N.J. at 180-81. Under the circumstances of

Carrion’s two confessions, we cannot conclude beyond a reasonable doubt that

he knowingly and voluntarily waived his Miranda rights when providing his

second statement. See Tillery, 238 N.J. at 316.

We address first factors two, three, and five. The second factor

considers whether there was a clear and substantial break in time and place

“between the pre- and post-warning questioning.” O’Neill, 193 N.J. at 181.

The second interview here took place in a different location six hours after the

arrest and initial confession. While we do not view a separation of six hours in

time as a bright line when considering this factor, we accept the Appellate

Division’s assessment that this factor weighs in favor of admission. Next,

under the third factor, the detective who conducted the second interrogation --

Detective James -- was not the officer who conducted the first interrogation.

Based on the record presented, Detective James apparently had no involvement

in Carrion’s case other than the one interview he conducted, and there is no

dispute that he was uninvolved in Carrion’s arrest. Factor three thus also

favors admission. And, for similar reasons as those present for factors two and

35
three, under the fifth factor, the post-warning questioning was not “a

continuation of the pre-warning questioning.” 8 Ibid.

On the other hand, like factor one, factor four favors suppression.

Specifically, under factor four, Detective James plainly did not inform Carrion

“that his pre-warning statements could not be used against him.” Ibid.

This appeal thus comes down to a weighing of factors two, three, and

five against factors one and four. An additional consideration weighing against

Carrion is his “prior experience with the criminal justice system.” Ibid.

Considered qualitatively, we hold that factors one and four, in this particular

case, outweigh the other factors.

As discussed, Carrion was not only burdened with a cat-out-of-the-bag

mentality when he went in for his second interview, but he also could very well

have remained under the looming fear that the police would call DYFS if he

did not continue to admit to ownership of the drugs and gun. Thus, he may

have been constrained from invoking his Miranda rights out of continued fear

that if he did so, his children would be taken away from his wife and placed

into DYFS care.

8
Still, simply because the second questioning was not, formally speaking, a
continuation of the first does not mean that the impact of the DYFS threat on
defendant did not continue into the interview with Detective James.
36
The standard of proof that the State must meet requires a showing that

Carrion’s waiver was knowing, intelligent, and voluntary beyond reasonable

doubt. We are unconvinced that the break in time, use of a different detective,

and separation between the first and second interrogations neutralized the dual

psychological burden faced by Carrion. Even assuming the efficacy of those

factors in counterbalancing a typical cat-out-of-the-bag mentality, they are

inadequate to offset -- to a degree that would allow a finding of voluntariness

beyond a reasonable doubt -- defendant’s likely fear that he needed to maintain

his admission to avoid his children’s removal. It bears repeating that in the

second interview, Carrion admitted only to possession of the gun and not to the

shooting of Rivera. That choice by Carrion -- to admit only to the crime he

previously confessed to -- supports that he was indeed afflicted by some

combination of the cat-out-of-the-bag mentality and the DYFS threat, which,

again, was directed at him only in the context of establishing ownership of the

black pouch or purse. Accordingly, we hold that that fear of intervention by

DYFS, in combination with his lack of knowledge that his first confession

could not be used against him, pushes the totality of circumstances in Carrion’s

favor.

37
D.

In closing, we note that it is rare that an unconstitutionally secured

confession is deemed harmless beyond a reasonable doubt, for we have

recognized “that inculpatory remarks by a defendant have a tendency to

resolve jurors’ doubts about a defendant’s guilt to his detriment.” State v.

McCloskey, 90 N.J. 18, 31 (1982) (holding that courts should apply the

“harmless error doctrine sparingly,” in cases “[w]here the State has violated

the defendant’s privilege against self-incrimination”); see also Tillery, 238 N.J.

at 334 n.3 (Albin, J., dissenting) (collecting cases rejecting harmless error

claims). Such is the case in this appeal. Carrion admitted to Detective James

that he was at the shooting, he owns a gun without a permit, and he was in

possession of drugs. It was not harmless to admit those statements.

Defendant is entitled to a new trial where his second statement shall no t

be admissible. Moreover, in light of our holding suppressing his second

statement, we further hold that the violation of defendant’s confrontation right,

as set forth in Section II of this opinion, is not harmless.

38
IV.

For the reasons expressed, the judgment of the Appellate Division is

reversed, and the matter is remanded for further proceedings consistent with

this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
LaVECCHIA’s opinion.

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