State of New Jersey v. Christopher Reynoso
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2287-22
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION April 10, 2026 v. APPELLATE DIVISION
CHRISTOPHER REYNOSO,
Defendant-Appellant. __________________________
Argued December 2, 2025 – Decided April 10, 2026
Before Judges Susswein, Chase and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 18-01-0078.
Rochelle Watson, First Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Sellitti, Public Defender, attorney; Rochelle Watson, of counsel and on the brief).
Timothy Kerrigan, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Nubar C. Kasaryan, on the briefs).
The opinion was delivered by
SUSSWEIN, J.A.D. Defendant Christopher Reynoso appeals his jury trial convictions for
murder, attempted murder, and weapons offenses stemming from a May 15,
2017, drive-by shooting that resulted in the death of Hansel Castillo and the
wounding of Bryan Cabrera. The State alleged at trial that codefendant Nelson
Vargas drove the car involved in the shooting, and that defendant, then just
two months shy of his eighteenth birthday, fired the gun.
Defendant was waived to adult court and was tried together with Vargas.
Defendant contends the trial court committed numerous errors, including by
denying his motion to suppress the entirety of the statement he gave to police
during his electronically recorded stationhouse interrogation. 1 While
defendant steadfastly maintained his innocence throughout the interrogation
session, and argued that others may have been involved in the shooting, he
unwittingly provided inculpatory evidence by describing the clothing he was
wearing on the day of the shooting.
1 Codefendant Vargas challenges his convictions in a separate appeal. State v. Vargas, No. A-1533-22 (App. Div. Apr. 10, 2026). Vargas and defendant raise a number of common trial error contentions. Because we focus in this appeal on defendant's self-incrimination contentions, which Vargas cannot raise, we issue separate opinions. See State v. Baum, 199 N.J. 407, 417 (2009) (holding that a defendant cannot "vicariously assert that another's right against self- incrimination has been violated" under either the federal or New Jersey Constitutions).
A-2287-22 2 Following a suppression hearing, the trial court found that at one point,
the detectives did not honor defendant's assertion of the right to stop the
interrogation, thus requiring the suppression of statements defendant made
after that invocation. 2 See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)
("[I]f [an] individual indicates in any manner, at any time prior to or during
questioning, that [they] wish[] to remain silent, the interrogation must cease.").
The trial court declined, however, to suppress statements defendant made
earlier in the interrogation, rejecting defendant's contention that the detectives
from the outset violated his rights.
Our opinion focuses on whether the State proved beyond a reasonable
doubt the voluntariness 3 of defendant's initial waiver of Miranda rights and the
statements he made before eventually invoking those rights. Much of our
analysis addresses whether defendant's mother was able to safeguard his
constitutional rights during the stationhouse interrogation considering her
2 The State did not appeal that ruling. 3 We focus in this appeal on the voluntariness of defendant's waiver of Miranda rights and ensuing statement, not on whether defendant knowingly waived those rights. Cf. State in Interest of M.P., 476 N.J. Super. 242, 300 (App. Div. 2023) (noting that "proof of voluntariness is analytically distinct from proof of knowledge in applying the 'knowing, intelligent, and voluntary' test for waiving constitutional rights"). See also State v. Gerald, 113 N.J. 40, 109 (1988) (noting that the defendant's arguments that his Miranda waiver was "not knowing and intelligent" and was "not voluntary" were "distinct claims").
A-2287-22 3 limited proficiency in the language in which it was conducted. We also
consider the impact of the detectives' failure to afford an opportunity for
defendant to consult privately with his mother after the Miranda warnings were
administered.
Aside from the issues pertaining to parental participation, we address
whether the police impermissibly burdened defendant's Miranda rights when
they told him, in response to his question, that he was free to leave—a
statement that may not have been true—and in almost the same breath implied
that if he stopped the interrogation by asking to confer with counsel, the
situation might change as they would need to consult with their "bosses" on
whether defendant would be charged and detained. (As it turned out, the
detectives decided to arrest defendant toward the end of the interrogation,
apparently without receiving instructions from their superiors—suggesting
they intended to arrest and charge him all along.)
Balancing the factors constituting the "totality of the circumstances," we
conclude that the State has not met its burden of proving voluntariness beyond
a reasonable doubt. The combination of factors militating to various degrees
against voluntariness—the impairment of the parent's ability to effectively
perform an advisory role by reason of her limited English proficiency and the
inadequate translation services provided to her; the failure to afford defendant
A-2287-22 4 and his mother an opportunity to consult privately following the administration
of Miranda warnings; and the detective's seeming misstatement as to whether
defendant was free to walk out of the interrogation room and go home,
considered in conjunction with the detective's near-simultaneous comment that
impliedly imposed a burden on defendant's right to confer with counsel —are
too much for the State to overcome when viewed through the lens of the proof -
beyond-a-reasonable-doubt standard. That standard erects a formidable hurdle
the State must vault. We are constrained to reverse the order denying
defendant's suppression motion, vacate his convictions, and remand for a new
trial.
I.
PERTINENT FACTS AND PROCEDURAL HISTORY
We discern the following facts and procedural history from the record.
A.
The Crime and Investigation
This case stems from a May 15, 2017, drive-by shooting of several
people gathered in front of a residence on Federal Street in Passaic. At 11:15
p.m. that night, a car drove past the residence before turning right onto
Burgess Street at 11:16 p.m. The car circled back onto Federal at 11:18 p.m.
and passed the home again. On this second pass, someone fired a gun from the
A-2287-22 5 car at the group of people gathered in front of the residence, hitting twenty -
year-old Bryan Cabrera and twenty-three-year-old Hansel Castillo.
At approximately 11:21 p.m., several officers from the Passaic Police
Department (Passaic PD) were dispatched to the scene on a report of shots
fired. The Passaic PD recovered four spent shell casings and a live round from
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2287-22
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION April 10, 2026 v. APPELLATE DIVISION
CHRISTOPHER REYNOSO,
Defendant-Appellant. __________________________
Argued December 2, 2025 – Decided April 10, 2026
Before Judges Susswein, Chase and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 18-01-0078.
Rochelle Watson, First Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Sellitti, Public Defender, attorney; Rochelle Watson, of counsel and on the brief).
Timothy Kerrigan, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Nubar C. Kasaryan, on the briefs).
The opinion was delivered by
SUSSWEIN, J.A.D. Defendant Christopher Reynoso appeals his jury trial convictions for
murder, attempted murder, and weapons offenses stemming from a May 15,
2017, drive-by shooting that resulted in the death of Hansel Castillo and the
wounding of Bryan Cabrera. The State alleged at trial that codefendant Nelson
Vargas drove the car involved in the shooting, and that defendant, then just
two months shy of his eighteenth birthday, fired the gun.
Defendant was waived to adult court and was tried together with Vargas.
Defendant contends the trial court committed numerous errors, including by
denying his motion to suppress the entirety of the statement he gave to police
during his electronically recorded stationhouse interrogation. 1 While
defendant steadfastly maintained his innocence throughout the interrogation
session, and argued that others may have been involved in the shooting, he
unwittingly provided inculpatory evidence by describing the clothing he was
wearing on the day of the shooting.
1 Codefendant Vargas challenges his convictions in a separate appeal. State v. Vargas, No. A-1533-22 (App. Div. Apr. 10, 2026). Vargas and defendant raise a number of common trial error contentions. Because we focus in this appeal on defendant's self-incrimination contentions, which Vargas cannot raise, we issue separate opinions. See State v. Baum, 199 N.J. 407, 417 (2009) (holding that a defendant cannot "vicariously assert that another's right against self- incrimination has been violated" under either the federal or New Jersey Constitutions).
A-2287-22 2 Following a suppression hearing, the trial court found that at one point,
the detectives did not honor defendant's assertion of the right to stop the
interrogation, thus requiring the suppression of statements defendant made
after that invocation. 2 See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)
("[I]f [an] individual indicates in any manner, at any time prior to or during
questioning, that [they] wish[] to remain silent, the interrogation must cease.").
The trial court declined, however, to suppress statements defendant made
earlier in the interrogation, rejecting defendant's contention that the detectives
from the outset violated his rights.
Our opinion focuses on whether the State proved beyond a reasonable
doubt the voluntariness 3 of defendant's initial waiver of Miranda rights and the
statements he made before eventually invoking those rights. Much of our
analysis addresses whether defendant's mother was able to safeguard his
constitutional rights during the stationhouse interrogation considering her
2 The State did not appeal that ruling. 3 We focus in this appeal on the voluntariness of defendant's waiver of Miranda rights and ensuing statement, not on whether defendant knowingly waived those rights. Cf. State in Interest of M.P., 476 N.J. Super. 242, 300 (App. Div. 2023) (noting that "proof of voluntariness is analytically distinct from proof of knowledge in applying the 'knowing, intelligent, and voluntary' test for waiving constitutional rights"). See also State v. Gerald, 113 N.J. 40, 109 (1988) (noting that the defendant's arguments that his Miranda waiver was "not knowing and intelligent" and was "not voluntary" were "distinct claims").
A-2287-22 3 limited proficiency in the language in which it was conducted. We also
consider the impact of the detectives' failure to afford an opportunity for
defendant to consult privately with his mother after the Miranda warnings were
administered.
Aside from the issues pertaining to parental participation, we address
whether the police impermissibly burdened defendant's Miranda rights when
they told him, in response to his question, that he was free to leave—a
statement that may not have been true—and in almost the same breath implied
that if he stopped the interrogation by asking to confer with counsel, the
situation might change as they would need to consult with their "bosses" on
whether defendant would be charged and detained. (As it turned out, the
detectives decided to arrest defendant toward the end of the interrogation,
apparently without receiving instructions from their superiors—suggesting
they intended to arrest and charge him all along.)
Balancing the factors constituting the "totality of the circumstances," we
conclude that the State has not met its burden of proving voluntariness beyond
a reasonable doubt. The combination of factors militating to various degrees
against voluntariness—the impairment of the parent's ability to effectively
perform an advisory role by reason of her limited English proficiency and the
inadequate translation services provided to her; the failure to afford defendant
A-2287-22 4 and his mother an opportunity to consult privately following the administration
of Miranda warnings; and the detective's seeming misstatement as to whether
defendant was free to walk out of the interrogation room and go home,
considered in conjunction with the detective's near-simultaneous comment that
impliedly imposed a burden on defendant's right to confer with counsel —are
too much for the State to overcome when viewed through the lens of the proof -
beyond-a-reasonable-doubt standard. That standard erects a formidable hurdle
the State must vault. We are constrained to reverse the order denying
defendant's suppression motion, vacate his convictions, and remand for a new
trial.
I.
PERTINENT FACTS AND PROCEDURAL HISTORY
We discern the following facts and procedural history from the record.
A.
The Crime and Investigation
This case stems from a May 15, 2017, drive-by shooting of several
people gathered in front of a residence on Federal Street in Passaic. At 11:15
p.m. that night, a car drove past the residence before turning right onto
Burgess Street at 11:16 p.m. The car circled back onto Federal at 11:18 p.m.
and passed the home again. On this second pass, someone fired a gun from the
A-2287-22 5 car at the group of people gathered in front of the residence, hitting twenty -
year-old Bryan Cabrera and twenty-three-year-old Hansel Castillo.
At approximately 11:21 p.m., several officers from the Passaic Police
Department (Passaic PD) were dispatched to the scene on a report of shots
fired. The Passaic PD recovered four spent shell casings and a live round from
a .22-caliber semiautomatic handgun on the roadway in front of the home.
Cabrera was transported to St. Joseph's Hospital in Paterson for
treatment of a gunshot wound to his shoulder; he was discharged at
approximately 2:00 a.m. Castillo, who had been hit in the right side of his
chest, was taken by a friend to St. Mary's Hospital in Passaic. Passaic PD
Detective Michele Merced, the lead investigator of the shooting, spoke with
Castillo at the hospital at around 11:25 p.m. Castillo told Merced he had been
shot by two men in a four-door gray Nissan Maxima. Castillo succumbed to
his wounds the next morning.
After speaking with Castillo, Merced talked to other witnesses who had
gathered at St. Mary's. Witnesses consistently reported that the vehicle from
which the shots were fired was a Nissan, although they differed on its specific
model and color; some said it was gray, while others said it was silver, beige,
or gold, and it was variously described as an Ultima or a Maxima. Some
witnesses described the car as two-toned, with a black hood.
A-2287-22 6 One of Castillo's friends, sixteen-year-old Wilmer Avelino, was
interviewed by the Passaic PD in the early morning hours of May 16. He lived
at the Federal Street residence and told Merced he saw the shooter's vehicle
pass his home once before the incident. Avelino reported that the car came
around the block again "right away," and that he heard three or four gunshots
as it passed his home again.
Avelino took note of the car because the first time it passed it stopped in
front of the residence, and the occupants appeared to look around. Avelino
described the vehicle as a gray Nissan with bright headlights, and said the
vehicle drove by with the passenger side facing his home. Avelino described
the driver of the car as "tall," but said he could not see the passenger clearly
because his view was obscured by another vehicle.
At first, Avelino said the car had a New Jersey license plate and that he
"saw a Z." He thought it was the first letter on the plate, and said again,
"[T]hat's all I saw was the Z, because, like, it was so fast." When Merced
asked if he was "sure" it was a "Z," Avelino said, "It was a Z or an S,
something like that."
The Passaic PD collected surveillance footage from several nearby
addresses via warrants. Video clips and still images from these cameras were
compiled into a single video approximately thirty-eight minutes and twenty
A-2287-22 7 seconds long. Although none of the footage depicted the actual shooting or the
Federal Street residence itself, the State argued it showed a car turning right
from Federal Street onto Burgess Place at 11:16 p.m. and again at 11:20 p.m.
on the night of the incident. Other earlier videos showed what appeared to be
the same car traveling from a nearby residence on Howe Avenue at
approximately 10:54 p.m. to a nearby gas station on Main Avenue, where it
arrived at 11:04 p.m. This vehicle left the gas station at approximately 11:07
p.m., drove the short distance to Federal Street, circled the block, and then
returned to the Howe Avenue residence, arriving there at 11:27 p.m. The
video showed two people exiting the vehicle and going into the house, then
returning about fifteen minutes later and appearing to search the front
passenger seat area of the car.
The police also conducted a search of automated license plate reader
(ALPR) data in the area, and discovered that ALPRs had captured a Nissan
with a license plate beginning with "Z" and a black hood at the intersection of
Federal and Burgess twice on May 11, a few days before the shooting, and
parked on nearby Howe Avenue on May 16, the day after the shooting. 4
4 Police learned that the registered owner of the Nissan was Robert Guzman, who had ostensibly obtained the car the day after the shooting. Police determined there was no evidence linking Guzman to the homicide, and he was not arrested.
A-2287-22 8 On May 23, officers executed a search warrant at the Howe Avenue
residence and recovered video footage depicting Vargas and defendant at the
house. Police also recovered a New Jersey registration and insurance card for
a Nissan bearing a plate beginning with "Z," and a driver's license exam permit
issued to Vargas.
On May 24, based on the surveillance footage and a tip that included
Vargas's Facebook profile, Merced decided to charge Vargas. He turned
himself in to the Passaic PD on June 1.
The surveillance footage the Passaic PD collected from May 15 also
included a video showing individuals gathered on the street a few houses down
from the Howe Avenue residence from approximately 6:50 p.m. to 7:15 p.m.,
when an ice cream truck arrived. At trial, Detective Raymond Rodriguez
identified defendant as an individual wearing two-toned pants in this video.
Rodriguez said he recognized defendant from his participation in a Junior
Police Academy program when he was ten or eleven years old, 5 and also
described interactions the two had at a laundromat in Passaic.
At trial, the State argued that Vargas was the driver of the car in the
surveillance compilation video, and that defendant was the passenger. The
5 As noted above, defendant was nearly eighteen at the time the shooting occurred.
A-2287-22 9 prosecutor urged the jury to "look at the pants and examine the pants" to
determine who was in the videos.
B.
The Stationhouse Interrogation
Defendant was identified by the Passaic PD as a person of interest after
the execution of the search warrant at the Howe Avenue residence and
Rodriguez and Merced's review of the video from that location. On June 1,
defendant was interrogated by Rodriguez, Detective Alex Flores, and
Detective Katie Velarde. Defendant's mother, Lorenza Montiel, 6 was present,
and the interrogation was electronically recorded. 7
6 According to the hearing transcripts, defendant's mother gave her name as "Lorenza Montila" on the first day she testified at the Miranda hearing, and "Gloria Montiel" on the second day. Her name is spelled "Lorenza Montiel" in the transcript of the court's oral decision on the motion to suppress. We refer to her as "Montiel." We mean no disrespect in doing so. 7 We note that on at least one occasion, the detectives left the interrogation room, during which time defendant conversed with his mother in Spanish while they were alone in the room. Eventually, that conversation was played to the jury. The record does not show whether defendant and his mother were advised that the content of any private conversation between them would be audio recorded. As we explained in M.P., 476 N.J. Super. at 295, this form of eavesdropping would seem to violate the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -37.
Defendant did not argue to the motion court and does not argue on appeal that the stationhouse interrogation was tainted by unlawful electronic eavesdropping. See State v. Aloi, 458 N.J. Super. 234, 243 n.6 (App. Div.
A-2287-22 10 At the start of the interrogation session, Flores asked Montiel if she
spoke Spanish or English. Montiel responded, "Spanish." Flores then asked
defendant to spell his name and asked whether he could "read and write and
understand English." Defendant said he could read English "a little bit."
Flores asked whether he wanted to speak in English or Spanish, and defendant
answered, "English." After getting some information from defendant about his
age and where he attended school, Flores showed Montiel his notes and
confirmed with her, in Spanish, 8 that this basic information was correct.
Flores told Montiel in Spanish that he was going to "read something to"
defendant, and "want[ed her] to know what [they were] talking about." He
said there were currently no charges against defendant, but that he needed to
read him his Miranda rights in case he said something relevant to the "case."
___________________________ 2019) (noting an issue not briefed on appeal is deemed waived (citing Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008))). In these circumstances, as in M.P., we choose not to address whether any portion of defendant's statement should be suppressed pursuant to the Wiretap Act's strictly enforced exclusionary rule. As we noted in M.P.— which was decided long after the 2017 interrogation in this case—the Attorney General and county prosecutors should take precautions to ensure that stationhouse interrogations recorded pursuant to Rule 3:17 are done in compliance with the Wiretap Act. 476 N.J. Super. at 295. 8 We rely on the State's transcript of defendant's interrogation, which includes English translations of conversations that were originally in Spanish. A version of this transcript was provided to the jury to aid its comprehension while the video of the statement was played during trial.
A-2287-22 11 Montiel replied, "Okay" and "All right." Flores said that at any point, he could
"stop everything to explain to [Montiel] more or less so [she would]
understand too." Montiel said, "It's okay." Flores gave defendant a Miranda
form in English and Montiel a Miranda form in Spanish.
Flores read defendant the Miranda rights, asking whether he understood
each of them. Defendant responded "Yeah" after each right. Montiel
interjected in Spanish, asking if the Miranda form was for defendant "to fill."
Flores started to explain, but defendant interrupted, telling his mother that
Flores was "saying . . . the rights [he had]." Defendant told his mother he did
not "have to talk" if he didn't want to, and that if he wanted a lawyer the police
could "give [him] one for free." Flores said he wanted to "ask [defendant] a
few questions to see what he [said]" about what the police were
"investigating." He also said that if defendant "[felt] like he need[ed] a lawyer
he [could] stop the discussion." Montiel said, "Oh, okay."
Detective Katie Velarde also told Montiel that everything Flores had just
explained was "on the paper" Montiel had been given listing the Miranda
rights in Spanish. Montiel said, "Ah. Yes, it's okay." Flores said the forms
defendant and Montiel had been given were "the same," except that one was in
English and the other in Spanish. He asked if Montiel wanted him to read the
A-2287-22 12 form to her in Spanish, but she said, "No. It's okay already." Flores asked,
"Are you sure?" and Montiel replied, "Yes."
In English, Flores read to defendant the waiver portion of the form,
stating that defendant understood his rights and had come to the decision to
waive them "independently of any promises of . . . benefit or reward, threats,
coercion or any unlawful influence." Flores asked if defendant understood,
and initially defendant said, "No." Flores explained that it meant "nobody's
forcing you to talk to me," that defendant understood the portion of the form
listing his rights, and that defendant "wish[ed] to continue." Defendant then
answered, "Oh. Uh, yeah." Flores further stated that if defendant did not wish
to continue, he could tell Flores he wanted a lawyer. Defendant said he
wanted to continue and signed the Miranda form. Montiel also signed the
English Miranda form.
Defendant then asked, "So, at any point in time if I wanna leave I can
leave?" Flores said, in English, that if defendant felt "cornered any type of
way" and wanted a lawyer, he could say, "Listen. I want a lawyer. I wanna
stop talking to you" and the police would "stop doing what [they] gotta do."
Flores said, "My job here is not to make you guilty. My job is to take you out
of what we're investigating and show that you have nothing to do with what
I'm investigating."
A-2287-22 13 Montiel stepped out of the interrogation room to make a phone call.
Defendant then asked Flores again, "So . . . if I wanna leave I could leave,
right?" Flores replied, "If you wanna leave you can leave but you must
understand that . . . once you say you want a lawyer I gotta talk to my bosses
to see what they gonna do with you." Defendant quickly shook his head and
said he did not need a lawyer, but asked again if he could "go home" if he
wanted to leave. Flores said that this would depend on "what [they] talk[ed]
about."
Flores then told defendant he should "say the truth" to "get [him]self out
of whatever we're lookin' at," and to not abide by any "street code stuff" about
not being a "rat." Defendant once more asked, "But whenever I wanna go I
could just go, right?" Flores said, "Well, you gotta tell me you wanna stop and
then, like I said, I'll tell my bosses what you decided to do and if they feel that
they still [want to] proceed with charges that's on them." Defendant said,
"Okay."9
9 Toward the end of the interrogation, detectives informed defendant that he was being arrested:
[Defendant]: Am I being arrested?
[Detective Flores]: I told you a couple of times already.
A-2287-22 14 Montiel returned to the interrogation room, and Flores conversed with
her in Spanish again about whether she understood the Miranda form. When
she said she had never filled out such a form before, Flores said, "what I'm
saying is that in this country you have rights. The police can't just do
whatever they want to do." Velarde asked defendant if he wanted her to read
Montiel the form out loud in Spanish, and he said, "Yeah. Please. 'Cause she
. . . don't know how to read that good." Velarde read the Miranda form to
Montiel in Spanish, telling her that defendant had answered "yes" to
understanding each right and asking her if she understood, too. Montiel
answered "yes" or "okay" to each right. At that point, the detectives advised
Montiel and defendant that they were investigating a homicide that occurred
on Federal Street on May 15.
___________________________
[Defendant]: No, right?
[Det. Flores]: Yes you are.
[Defendant]: So I'm being arrested?
[Det. Flores]: Yes.
As we discuss in Section VII.B, this suggests that the detectives may have intended to arrest defendant the entire time, and that he was therefore not free to leave.
A-2287-22 15 During the ensuing interrogation, the officers questioned defendant in
English, and he answered in English. Most of this exchange was not translated
into Spanish in real time for Montiel. Rather, at various points during the
interrogation, they gave Spanish summaries to Montiel of what had been said.
Defendant also sometimes spoke to Montiel in Spanish, and the detectives had
some exchanges with her and defendant in Spanish as well.
For example, before he began asking defendant about the night in
question, Flores told Montiel in Spanish that the police were investigating a
homicide and that someone had already been arrested. Flores said the crime
was a "shooting" that took place at a Federal Street residence and that "he,"
meaning defendant, was "the second part" of the investigation. In Spanish,
Montiel asked, "He?" and Flores answered, "Yes."
Flores and Velarde then proceeded to question defendant in English
about his whereabouts on the day of the shooting, who he was with, and what
he was wearing. The officers urged defendant to tell the truth, saying that
there was "evidence that brought [them] to [him]" and that his name was
"brought up multiple times" by unnamed individuals. When defendant
maintained that he took a Percocet pill that night and passed out, the detectives
pushed back, saying that defendant "left with somebody that night" and was
"either a witness to what happened or . . . the shooter." Detectives exhorted
A-2287-22 16 defendant to "save [his] a[**]" and "come clean and explain what happened."
Defendant again stated that he took a pill and passed out around 10:00 or 10:30
p.m.
Following this seventeen-minute exchange, during which Montiel was
silent, Flores told her, in Spanish:
Ma'am, um, we're explaining to him that we already know that he has a part in what we're investigating. At this moment he's telling us that he doesn't have . . . anything to do with nothing. But we're going to . . . show him video because there's a video. You know, he says that . . . he was sleeping and we know that he wasn't sleeping.
In another three-minute stretch entirely in English, detectives asked
defendant whose car was depicted in the video, told defendant he was "either
the shooter or the driver," and suggested he would face a murder charge if he
maintained his story.
Later in the interrogation, detectives and defendant spoke to Montiel in
Spanish. For example, defendant told Montiel in Spanish, "They're accusing
me of killing somebody." Montiel told defendant his friendships were "not
good." Defendant asked if she remembered the day when he did not come
home until 5:00 a.m. and said he had explained to the officers what he did that
day. Velarde told Montiel that the officers would show the two a video to
demonstrate that they were not questioning her son "without any reason."
A-2287-22 17 Defendant said, "She understands," and Montiel said, "Yes." While watching
the video, Montiel indicated she could see it fine.
After showing the video, Flores said to Montiel in Spanish that he
thought it depicted defendant getting in a car with another man, and that he
had asked defendant whether he was "the one driving or the one who shot."
He told Montiel that defendant had been "keep[ing] with his thing, 'I don't
know. I was sleeping. I was passed out.'" Montiel told defendant, "If you
know, you can't be covering up for people." She explained that she had once
changed her residence out of fear of someone who had threatened her with
violence, and so she was "never in favor of people doing things that are not
okay." Defendant said, "I don't have to cover [for] anyone."
After viewing another video, Montiel told the detectives that "it doesn't
look like it's [defendant]" in the footage. Flores again told her in Spanish that
he believed the video depicted defendant and that detectives had an additional
video showing defendant leaving the Howe Avenue residence the morning
after the shooting. Montiel told defendant that she did not want him to "get
along with [his] friends" by covering for them, because there were "no better
friends than [his] mother and [his] brother."
Later, Montiel told the officers that because there were "cameras there,"
the officers should be able to see defendant sleeping, as he claimed. Flores
A-2287-22 18 said defendant was not sleeping, because there was video of him getting out of
a car around 11:00 p.m. He told Montiel he wanted defendant to tell him who
the other person in the car was, but said he already knew the answer. Montiel
asked, "You know who he is?" and Flores replied, "Yes." Montiel said her son
had "no enemies" and did not "fight on the streets." After being shown the
video Flores talked about, Montiel questioned whether the officers could see
the face of the person getting out of the car, because she "[didn't] see
anything."
At one point during the interrogation, Flores said to defendant in
English, "That's a shame, because she's sitting here. She has no clue what the
hell is going on, and you keep thinking that we don't know."
Near the end of the interrogation, defendant urged the detectives in
English to check for cameras at the Howe Avenue residence, and Montiel
agreed in Spanish without being provided a translation first. Montiel also
asked who owned the car depicted in the video, and Flores explained to her in
Spanish that the person "who's arrested . . . was driving the car that night."
Montiel said the car's owner should "know for sure who [was] inside of the
car." Defendant said, "Mom, I'm telling you and them that—" and then retold
his account of the day, in which he played basketball, drank alcohol, took a
pill, and fell asleep.
A-2287-22 19 C.
Motion to Suppress Hearing
In January 2018, defendant, along with Vargas, was charged by
indictment with murder, N.J.S.A. 2C:11-3(a)(1) and (2); attempted murder,
N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3(a)(1); conspiracy to commit
murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; two counts of possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b).
Defendant moved to suppress the statement he gave to police at the
stationhouse on June 1, 2017. The suppression hearing was held over the
course of eight days in September and October 2019. Detectives Velarde,
Flores, and Rodriguez testified for the State, and Montiel testified for
defendant.
Detective Rodriguez testified that he brought defendant to the police
station from his school and that defendant was not handcuffed at any point in
this process. Velarde and Flores acknowledged that Montiel appeared to speak
only or mostly Spanish and explained that this was why they spoke to her and
read her the Miranda warnings in that language. Velarde said she was not sure
whether Montiel understood any English and did not ask. She believed
Montiel understood the Miranda rights read to her in Spanish, and Flores also
A-2287-22 20 testified that defendant appeared to understand the rights read to him in
English. Velarde said Flores informed Montiel that the detectives were
investigating a homicide and that was "why her son was there" just "seconds"
after stating the same to defendant in English.
When asked by defendant's counsel what her "responsibility" was to
Montiel, given that "questions [were] being asked back and forth but she
doesn't speak English," Velarde said, "to translate for whatever . . . she didn't
understand." Velarde agreed that detectives only summarized their "back and
forth" with defendant periodically, acknowledging that nothing was translated
for Montiel "in real time." She further conceded that her summaries were not
"word-for-word" translations. Flores agreed that there was no set procedure to
decide when to provide a Spanish translation or summary to Montiel. 10 He
said that Montiel was nevertheless "in a position to stop the process" because
she could say "stop, I want to know what's going on" if she did not understand
what was being said in English. In contrast, Velarde acknowledged it would
be difficult for Montiel to stop defendant from answering a question if she did
not understand it.
10 We recommend that the Supreme Court Committees on Criminal and Family Practice consider whether rules on translation services for interrogations—particularly for parents or guardians of juvenile interrogees — are needed to ensure meaningful participation. See note 15.
A-2287-22 21 However, Velarde also said she "wasn't aware that [Montiel] wasn't
understanding any words that [the detectives] were saying." She said she
periodically summarized the conversation between defendant and the
detectives for Montiel in Spanish to "reaffirm[] that she had gotten the gist of
what [they] were saying." She testified that "the pertinent information to the
investigation [was] most definitely relayed to [Montiel]," explaining that she
felt "[a] lot of the stuff" being said by defendant and the detectives "was kind
of repetitive" and thus there was no need to "repeatedly relay[]" it to Montiel.
She also said that "a big part of" why summaries were provided instead of
word-for-word translations was that "[Montiel] didn't seem not to understand."
Flores similarly testified that he did not assume Montiel did not understand
any English but provided summaries of the conversations in Spanish "because
she preferred it in Spanish."
During Flores's testimony at the hearing, the State played the portion of
the statement in which defendant mentioned in English the possibility of
camera footage from the Howe Avenue house and Montiel responded in
Spanish. Flores said that Montiel's interjections seemed responsive to
defendant's conversation with the detectives, despite no one translating that
portion for her. Velarde and Flores maintained that Montiel did not seem
A-2287-22 22 "confused" during the interrogation and never asked the detectives to stop the
questioning.
Defendant's counsel asked Flores about his comment during the
interrogation that Montiel was "sitting here" with "no clue what the hell is
going on." Flores explained that he meant Montiel did not know what was
going on "[i]n reference to . . . [the] homicide," not that she "doesn't know
what's going on in the [interrogation] room," and that he made that remark in
order to get defendant to say more about the case. He added that Montiel
maintained eye contact with the detectives and defendant during the
questioning in English, and "did say some words to us following what we were
talking about."
The English version of the Miranda form signed by defendant and the
Spanish version of the form read to Montiel were entered into evidence.
Velarde testified that during the interrogation, defendant was permitted
bathroom breaks and was given "a meal," and that Montiel was also brought "a
snack."
Montiel also testified at the Miranda hearing, with a Spanish interpreter.
She said she was born in Mexico, attended school there until the fourth grade,
and came to the United States with her family at age seventeen. She did not
attend school after the fourth grade because she had to work to support her
A-2287-22 23 mother and siblings. She said she spoke Spanish and understood "a little bit, a
few words" of English. She also said she did not know how to read or write in
any language.
Montiel said that when she was brought to the Passaic PD for
defendant's interrogation, she "felt very bad because it was the first time that
[she] had to go through [that] situation." She reported feeling "in a state of
depression" and "nervous." Montiel said that the police officers spoke to her
in Spanish, and that a detective read a form to her about her and her son's
rights. When asked if she remembered if she understood the rights, she said, "I
think so, yes." She also recalled being told that defendant was being
questioned in connection with a homicide investigation.
However, Montiel said she did not understand the detectives' questions
to defendant or his answers that were spoken in English. She also said she was
"in shock" and "wasn't doing well at the time" because she had "never been in
that situation," and so she did not remember much. She said that "at times [the
detectives] would explain and then at others [they] wouldn't." She also said
she did not try to stop the questioning because she did not "know anything
about the law."
Montiel explained that after being read the Miranda warnings, she
believed she could stop police from questioning her son "at the beginning," but
A-2287-22 24 could not do so once they started because "they are police officers and they
have to proceed." She said again that she could not understand what was being
said when defendant and the detectives were speaking English.
D.
Trial Court's Suppression Ruling
On February 11, 2020, the trial court rendered an oral decision, granting
defendant's motion to suppress in part and denying it in part. With respect to
the portion of the court's ruling granting defendant's motion, the court found
that after Flores told him he was being "arrested" and "detained," defendant
said, "I wanna stop." The detectives continued their questioning until
defendant said, "Can I get a lawyer?" The court found that everything
defendant said after he said he wanted to "stop" was inadmissible.
The court found credible Rodriguez's statement that defendant was not
handcuffed when he was brought in for questioning, "nor were any promises or
threats made to induce" defendant to go to the Passaic PD. The court also
found Velarde credible, stating that she "had an excellent recall of the events
and command of the subject matter," and "maintained an even tone and
demeanor throughout direct and cross-examination."
The court found that defendant was seventeen years old and in the
eleventh grade at the time of the interrogation and was not under the influence
A-2287-22 25 of any substance at the time. It found that defendant spoke both Spanish and
English, and "for the most part" spoke the former to his mother and the latter
to police. It also found that defendant told police he preferred to talk with
them in English. The court concluded that Velarde and Flores "properly
executed the Miranda rights" with defendant in English.
The court next found it noteworthy that "during the recitation of the
Miranda rights . . . [defendant] took extra steps to ensure his mother
understood." It recounted how defendant told Montiel he did not "have to
talk" and that police would "give [him] a lawyer" if he asked. The court also
found that "[t]he police also spoke to [Montiel] in Spanish to ensure
understanding." It further found that Flores and Velarde explained the waiver
portion of the English form to defendant, again telling him he could ask for a
lawyer.
The court concluded that the detectives' procedures fully satisfied the
Miranda requirements. It found that Velarde read "each and every question"
on the Spanish Miranda form to Montiel, including both the list of rights and
the waiver portion of the form. The court further found that it was "clear" that
defendant "was not relying on his mom to understand his rights, quite to the
contrary." Instead, defendant "explain[ed] to his mom what certain rights
meant and what Miranda warnings entailed as he was more sophisticated than
A-2287-22 26 her when dealing with these issues." The court also noted that when police
asked Montiel if she would consent to a search of her apartment, defendant
interjected and explained to his mother in Spanish what the detectives wanted
and that she did not have to agree, then urged her to consent.
The court found that defendant was "calm and composed the entire time"
he was being questioned, and "[did] not appear to be fearful or [fazed]." It
also found that the police never "forced or threatened" defendant, and that
there was no evidence he "was suffering from exhaustion or fatigue." Instead,
the court stated, he was "extremely animated and at ease with the detectives
during questioning" and "relaxed when left alone in the room."
The court further noted that no questioning occurred when Montiel was
not in the room. Questioning ceased when Montiel stepped out to use the
bathroom or make a phone call. The court found that the detectives questioned
defendant "in an appropriate manner using language and techniques
appropriate for his age," and that defendant's "answers were responsive to the
questions asked, indicating he understood and was able to communicate with
the detectives." The court noted that defendant "corrected [the] detectives if
they misstated his answers or had inaccurate information."
The court further found that Montiel "credibly testified" that she was not
threatened or forced to come to the Passaic PD or to "allow her son to give a
A-2287-22 27 statement to the police." Regarding Montiel's understanding of portions of the
interrogation conducted in English, the court stated:
[I]nsofar as Ms. Montiel claims she was unable to understand when her son and the police spoke in English, the court finds her testimony somewhat incredible. In particular, [the interrogation video] clearly demonstrates several occasions where Ms. Montiel would interject in Spanish information directly responsive to the questions being asked of her son in English. One particular occasion was when the police were discussing with [d]efendant the placement of cameras in the area where his friend resided. Ms. Montiel interjected in Spanish where certain cameras might be located and for the police to check for footage.
The court found that that defendant "did not need his mother to act as a
buffer between him and the police." The court stated that there was "no doubt"
that defendant "understood his rights and understood his ability to exercise his
rights" regardless of whether Montiel "understood every single word of the
conversation between her son and the police." The court found that while
there was no "simultaneous translation" into Spanish for Montiel's benefit, "the
detectives did take the time to stop periodically and summarize" for her "the
sum and substance of their prior questions and answers with her son." The
court found that Montiel was present "especially during the critical stage
where the Miranda warnings were issued" and that she "[did] not dispute she
understood those rights." The court ultimately concluded that the State carried
A-2287-22 28 its burden to demonstrate beyond a reasonable doubt that defendant's statement
was "the product of free will" and that he knowingly, intelligently, and
voluntarily waived his rights and spoke to police.
E.
Jury Trials, Sentencing, and Appeal
The first trial was convened in early 2020. It ended in a mistrial because
of the COVID-19 pandemic. A new trial was held over the course of
seventeen non-consecutive days in May and June 2022. The jury found
defendant and Vargas guilty on all counts.
In December 2022, defendant was sentenced on the murder conviction to
a state prison term of thirty-five years with a thirty-year period of parole
ineligibility. On his attempted murder conviction, the court imposed a
consecutive fifteen-year prison term, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. The remaining convictions were either merged
for sentencing purposes or ordered to run concurrently to the sentences
imposed on the murder and attempted murder counts.
This appeal follows. Defendant raises the following contentions for our
consideration:
POINT I THE STATE FAILED TO PROVE A VALID MIRANDA WAIVER BECAUSE DEFENDANT DID NOT PRIVATELY CONSULT WITH HIS PARENT,
A-2287-22 29 THE INTERROGATION WAS PRIMARILY IN ENGLISH DESPITE HIS PARENT'S SPANISH FLUENCY, AND THE POLICE CONTRADICTED THE WARNINGS AND OBFUSCATED DEFENDANT'S TRUE STATUS.
POINT II THE FAILURE TO REDACT STATEMENTS FROM THE INTERROGATION THAT VIOLATED THE CONFRONTATION CLAUSE AND EXPRESSED THE DETECTIVES' BELIEF THAT VIDEO EVIDENCE SUBSTANTIATED DEFENDANT'S GUILT, DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL.
POINT III THE TRIAL COURT COMITTED REVERSIBLE ERROR BY GRANTING THE JURY UNFETTERED ACCESS TO THE STATE'S SURVEILLANCE VIDEO COMPILATION DURING DELIBERATIONS, WITH NO RECORD OF HOW OFTEN THE VIDEO WAS PLAYED OR WHETHER IT WAS MANIPULATED.
POINT IV THE IMPROPER ADMISSION OF A POLICE OFFICER'S IDENTIFICATION OF DEFENDANT FROM SURVEILLANCE FOOTAGE REQUIRES REVERSAL.
POINT V TWO DETECTIVES WITH NO PRIOR KNOWLEDGE OF THE THIRD-PARTY GUILT SUSPECT11 IMPROPERLY TESTIFIED THAT UNPRESERVED SURVEILLANCE FOOTAGE THEY REVIEWED CORROBORATED THE
11 While not addressed in this opinion, we note that defendant and codefendant Vargas raised a third-party guilt defense at trial.
A-2287-22 30 SUSPECT'S ALIBI, THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT VI THE PROSECUTOR ENGAGED IN MISCONDUCT BY MAKING TWO SPECIOUS CLAIMS: ASSERTING, WITHOUT EVIDENCE, THAT [DEFENDANT] HANDLED A GUN IN THE CAR, AND IMPROPERLY VOUCHING FOR THE OFFICER'S CREDIBILITY BY IMPLYING THAT DISCOUNTING THEIR TESTIMONY WOULD BE TANTAMOUNT TO ACCUSING THEM OF A CONSPIRACY.
POINT VII A RESENTENCING IS WARRANTED BECAUSE THE COURT DID NOT MEANINGFULLY CONSIDER DEFENDANT'S YOUTH AND IMPOSED CONSECUTIVE[] SENTENCES WITHOUT ADEQUATE CONSIDERATION OF THE OVERALL FAIRNESS.
II.
ADMISSIBILITY OF DEFENDANT'S STATEMENT
We focus on defendant's contentions regarding the admissibility of his
June 1, 2017, statement to police. We begin by acknowledging the
foundational legal principles that govern this appeal, starting with general
procedural matters before turning to the substantive constitutional rights at
issue.
A-2287-22 31 A.
Standard of Appellate Review
When reviewing a grant or denial of a motion to suppress a statement,
we apply a deferential standard of review to the trial court's findings of fact.
State v. S.S., 229 N.J. 360, 379-80 (2017). Thus, "[g]enerally, on appellate
review, a trial court's factual findings in support of granting or denying a
motion to suppress must be upheld when 'those findings are supported by
sufficient credible evidence in the record.'" Id. at 374 (quoting State v.
Gamble, 218 N.J. 412, 424 (2014)). Stated another way, "[a] trial court's
findings should be disturbed only if they are so clearly mistaken 'that the
interests of justice demand intervention and correction.'" State v. Elders, 192
N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The
S.S. Court explained that "[p]ermitting appellate courts to substitute their
factual findings for equally plausible trial court findings is likely to 'undermine
the legitimacy of the [trial] courts in the eyes of litigants, multiply appeals by
encouraging appellate retrial of some factual issues, and needlessly reallocate
judicial authority.'" S.S., 229 N.J. at 380-81 (quoting Fed. R. Civ. P. 52(a)
advisory committee's note to 1985 amendment). The Court in S.S. explicitly
extended this deferential standard of appellate review to factual findings that
are based on a video recording. Id. at 379-81. See also State v. A.M., 237 N.J.
A-2287-22 32 384, 401 (2019) (noting that "by videotaping their questioning of defendant,
police permitted the trial court to review the [interrogation] and assess
defendant's overall deportment and conduct as well as the officers' demeanor
and conduct throughout the custodial interrogation").
However, we owe no deference to "conclusions of law made . . . in
suppression decisions," which we review de novo. State v. Boone, 232 N.J.
417, 426 (2017) (citing State v. Watts, 223 N.J. 503, 516 (2015)). Nor are we
bound by a trial court's interpretations of the "legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995); see also State v. Handy, 206 N.J. 39, 45
(2011) (noting that whether established facts warrant suppression is a "purely
. . . legal question" subject to plenary review).
Applying these general principles, we review a trial court's
determination of whether an interrogee's waiver of rights and statement were
given voluntarily as a "mixed" question of fact and law. Cf. State v. Marshall,
148 N.J. 89, 185 (1997) (holding that, in reviewing a mixed question, appellate
courts apply de novo review to the trial court's legal determinations but may
only reverse its factual determinations if they are "clearly erroneous"). Under
the mixed question framework, we accept a trial court's factual findings
regarding each of the relevant circumstances that comprise the totality of the
A-2287-22 33 circumstances but review de novo the weight accorded to each individual
circumstance in the balancing process, since the weight assignation is
essentially a legal consequence that flows from established facts. So too we
review de novo the ultimate question of whether the State proved voluntariness
to the requisite level of proof: proof beyond a reasonable doubt.
Applying Analytical Rigor to the Totality-of-the-Circumstances Paradigm
We are required on multiple occasions in this appeal to apply the
"totality-of-the-circumstances" (TOC) method of legal analysis. That
approach is used in various areas of law to evaluate whether a particular legal
threshold has been met by assessing the collective weight of all relevant
factors in a given situation.
The TOC paradigm is, by design, more flexible and less mechanistic
than, for example, the application of a "bright-line" or "per se" rule, or a test
that features specified elements, each of which must be proved independently.
But that does not mean that TOC analysis is less rigorous than other analytical
methodologies. It is much more than a "kitchen sink" approach. While the
TOC review process is, by definition, holistic, and necessarily includes
subjective, qualitative assessments, it should not be thought of as a visceral,
kneejerk, or gestalten reaction to a hodgepodge of relevant factors. As we
A-2287-22 34 commented in State v. Cotto, "the totality-of-the-circumstances paradigm is
rigorous when used as part of the '"searching and critical" review of the record
to ensure protection of a defendant's constitutional rights,'" 471 N.J. Super.
489, 518-19 (App. Div. 2022) (quoting State v. Hreha, 217 N.J. 368, 381-82
(2014)), and that it is "by no means a paper tiger," id. at 519.
Importantly, TOC analysis entails a patient, step-by-step deliberative
process. The first step is to identify a circumstance recognized to be relevant
under the case law, such as, for example, the absence of a juvenile interrogee's
parent. The next step is to determine the weight to ascribe to that
circumstance. That critical task must take into account that not all relevant
circumstances recognized in the precedents are created equal under the law.
Some types of circumstances by their inherent nature—and by operation of
case law—are accorded more weight in the eventual totaling process. For
example, as we emphasize in Section II.E, our Supreme Court in State v.
Presha held that the absence of a parent's participation is a "highly significant"
voluntariness factor, adding:
By "highly significant factor" we mean that courts should give that factor added weight when balancing it against all other factors. By elevating the significance of the adult's role in the overall balance, we are satisfied that the rights of juveniles will be protected in a manner consistent with constitutional guarantees and modern realities.
A-2287-22 35 [163 N.J. 304, 315 (2000).]
But that legal principle is only the starting point of the review process
with respect to the parental-participation factor. As the facts in this appeal
highlight, parental participation cannot always be reduced to a simple yes-or-
no question to be checked off on a tally sheet. The point is that while some
types of recurring circumstances are deemed as a matter of law to carry highly
significant weight, the case-specific facts must be considered in determining
whether the full potential weight of that circumstance should be applied when
the circumstance is considered in the final totaling step.
Furthermore, in applying TOC analysis to the question of whether a
defendant's statement was given to police voluntarily, we must acknowledge
that in the real world, an interrogee's inculpatory admissions will rarely be
completely involuntary (e.g., extracted by physical or mental torture) or
completely voluntary (e.g., made entirely at the person's own initiative and
without any form of police inducement, prodding, or psychological pressure).
An analogy can be drawn to a hospital pain scale that allows a patient to
choose from ascending levels of pain ranging from minor discomfort to
excruciating debilitation. Were we to design a similar scale to describe
voluntariness, most situations would fall somewhere between the polar
extremes. The flexibility inherent in the TOC paradigm allows courts to
A-2287-22 36 account for such variability in deciding whether the State has overcome the
presumption of inadmissibility.
It bears emphasis that the weight-assignment/balancing process at the
heart of TOC analysis is not governed by any mathematical formula or
algorithm. See State v. Bullock, 253 N.J. 512, 534 (2023) (noting that Fifth
Amendment voluntariness factors are "assessed 'qualitatively, not
quantitatively'" (quoting Hreha, 217 at 384)). Indeed, the Court in Bullock
stressed in the same sentence that "the presence of even one of those factors
may permit the conclusion that a confession was involuntary." Ibid. (quoting
Hreha, 217 N.J. at 384). That admonition to reviewing courts confirms not
only that some circumstances carry more weight than others, but that any
factor that strongly suggests involuntariness might justify suppression even
when other relevant circumstances militate in favor of admissibility.
Finally, with respect to the rigor of TOC analysis, we note that the
process of navigating each analytical step requires a careful and fulsome
articulation of a court's findings of fact and conclusions of law. Stated another
way, especially in close cases that involve important constitutional rights, both
trial and appellate courts applying the TOC paradigm must do more than offer
what might be characterized as a "net opinion." Cf. State v. Townsend, 186
N.J. 473, 494 (2006) ("[T]he net opinion rule 'requires an expert to give the
A-2287-22 37 why and wherefore of [their] opinion, rather than a mere conclusion.'" (quoting
Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002))). Simply
stated, we are obliged to "show our work." 12
C.
Basic Rights Against Self-Incrimination and Due Process
Turning to substantive legal principles, "[t]he right against self-
incrimination is guaranteed by the Fifth Amendment to the United States
Constitution and this [S]tate's common law, now embodied in statute, N.J.S.A.
2A:84A-19, and evidence rule, N.J.R.E. 503." S.S., 229 N.J. at 381-82
(quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). In the landmark
Miranda case, the United States Supreme Court "determined that a custodial
interrogation by law enforcement officers is inherently coercive, automatically
triggering the Fifth Amendment privilege against self-incrimination." State v.
P.Z., 152 N.J. 86, 102 (1997) (citing Miranda, 384 U.S. 436). The Court in
Miranda devised the now-familiar set of warnings to safeguard the Fifth
Amendment's guarantee of the privilege against self-incrimination. Miranda,
384 U.S. at 444, 468-72. In doing so, the Court established a per se rule: the
12 We note that while we reach a different ultimate conclusion than the one reached by the trial court—applying a de novo standard of review to that legal determination—the trial court's analysis was commendably thorough and detailed.
A-2287-22 38 failure to properly administer the Miranda warnings, or the failure to honor an
invocation of the right to remain silent or the right to speak to an attorney,
automatically requires the suppression of any resulting admission. Id. at 444.
The Miranda warnings are designed to "dispel the compulsion inherent
in custodial surroundings." Id. at 458. But reciting the warnings is not a
magic spell that eliminates all manner of compulsion as to inoculate an
interrogation from constitutional challenge. Punctilious compliance with
Miranda's prophylactic requirements is a precondition to admissibility, not a
guarantee of admissibility. In P.Z., the New Jersey Supreme Court recognized
that although "Miranda established a per se rule to counteract the inherently
coercive nature of custodial interrogations by law enforcement[,] it did not
eliminate the due process requirement that all statements given during an
interrogation must be voluntary." 152 N.J. at 113 (citing Miller v. Fenton, 474
U.S. 104, 109-10 (1985)).
Accordingly, in addition to determining whether police complied with
Miranda's prophylactic requirements, reviewing courts must consider whether
the defendant's statements were "the product of an essentially free and
unconstrained choice," or whether instead "the defendant's 'will [was]
overborne and [their] capacity for self-determination critically impaired.'"
Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)). As
A-2287-22 39 we have stressed, determination is made by weighing the totality of the
relevant circumstances. See Nyhammer, 197 N.J. at 402-03 (noting that
generally, when a court determines whether an interrogee has knowingly,
intelligently, and voluntarily waived their right against self-incrimination in
the setting of a custodial interrogation, it considers the totality of the
circumstances); State v. L.H., 239 N.J. 22, 43 (2019) ("The voluntariness
determination weighs the coercive psychological pressures brought to bear on
an individual to speak against [their] power to resist confessing." (citing
Dickerson v. United States, 530 U.S. 428, 434 (2000))).
Some relevant circumstances pertain to police conduct and other matters
within police control, and others to the personal characteristics and
background of the interrogee over which police have no control or even
awareness. See M.P., 476 N.J. Super. at 290 (noting that characteristics of the
interrogee remain relevant "notwithstanding they may not manifest outwardly
during an interrogation"). As our Supreme Court recently observed, "factors
commonly considered include the defendant's 'age, education and intelligence,
advice as to constitutional rights, length of detention, whether the questioning
was repeated and prolonged in nature and whether physical punishment or
mental exhaustion was involved.'" Bullock, 253 N.J. at 534 (quoting
Nyhammer, 197 N.J. at 402).
A-2287-22 40 It bears noting at this point that the "totality" of relevant circumstances
includes two distinct categories: (1) factors relating to the questioning
methods and tactics used by police interrogators (e.g., length of detention,
repetitive and accusatorial questions, and trickery) and (2) factors pertaining to
the personal characteristics and background of the interrogee (e.g., age,
education, intelligence, experience with the criminal justice system,
intoxication, and mental illness). The former category focuses on police
conduct in the interrogation room, the latter on personal characteristics that
suspects bring with them to the interrogation.
A rough analogy can be drawn to the two categories of factors that are
used to determine the reliability of eyewitness identifications, as explained in
State v. Henderson, 208 N.J. 208, 245-77 (2011). Some factors are under the
control of the police officers who administer the eyewitness identification
procedure, such as whether the photo array was properly composed, whether
the procedure was electronically recorded, and whether the administrator
followed a "double blind" procedure and provided appropriate instructions to
the witness. These police-controlled circumstances are known as "system"
variables. See id. at 248-61. Other relevant factors, known as "estimator"
variables, relate to circumstances over which police have no control, such as
A-2287-22 41 lighting, distance, vision or memory disabilities, and the stress experienced by
the witness at the moment of the observation. See id. at 261-72.
A witness's out-of-court identification may be found to be unreliable
based on estimator variables even when the identification procedure was
administered by police in accordance with the rules and standards. So too in
the context of self-incrimination/voluntariness analysis, a defendant's waiver
of rights or ensuing statement may be found to be involuntary despite the
absence of improper police interrogation tactics. Stated another way, unlike
the exclusionary rule remedy for violations of the per se Miranda rules, the
decision whether to suppress a confession or inculpatory admission under TOC
voluntariness analysis can account for, but does not hinge on, a finding of
police wrongdoing.
Heightened Protections Under New Jersey Law
Under New Jersey law, the rules governing the admissibility of custodial
statements and admissions are strictly enforced. In State v. Erazo, our
Supreme Court stressed that "[w]ith respect to the trial court's admission of
police-obtained statements . . . an appellate court 'should engage in a
"searching and critical" review of the record to ensure protection of a
A-2287-22 42 defendant's constitutional rights.'" 254 N.J. 277, 297 (2023) (quoting Hreha,
217 N.J. at 381-82 (internal citation omitted)).
Furthermore, the substantive rights themselves are more protective under
New Jersey law than under its federal counterpart. In State v. Vincenty, the
Court reaffirmed that the "[New Jersey] common law privilege against self -
incrimination affords greater protection to an individual than that accorded
under the federal privilege." 237 N.J. 122, 132 (2019) (quoting In re Grand
Jury Proc. of Guarino, 104 N.J. 218, 229 (1986)). The Vincenty Court
emphasized that "[w]e have provided that protection because the right against
self-incrimination is 'an integral thread in the fabric of [the] common law,' and
'one of the most important protections of the criminal law[.]' Accordingly, we
maintain 'an unyielding commitment to ensure the proper admissibility of
confessions.'" Ibid. (quoting State v. Hartley, 103 N.J. 252, 286 (1986); then
Presha, 163 N.J. at 312; and then State v. Reed, 133 N.J. 237, 252 (1993)).
Notably, "[a]lthough the United States Supreme Court has held that the
[S]tate must prove admissibility of a confession by only a preponderance of
the evidence,13 [the New Jersey Supreme Court] has held that the State must
prove admissibility beyond a reasonable doubt." State v. Bey, 112 N.J. 123,
13 See Colorado v. Connelly, 479 U.S. 157, 168 (1986).
A-2287-22 43 134 (1988) (citations omitted); accord State v. O.D.A.-C., 250 N.J. 408, 420
(2022).
Special Protections Afforded to Juveniles
The rules of engagement for police are not the same for adults and
juveniles, and there are some relevant circumstances that uniquely apply to
underage suspects. At the heart of this appeal lies the basic principle that New
Jersey has "long accorded juveniles special protections when they are
subjected to interrogation." State ex rel. A.W., 212 N.J. 114, 128 (2012); see
also M.P., 476 N.J. Super. at 263 ("No one disputes that children are different
from adults for purposes of determining the admissibility of admissions and
confessions given to police." (citing A.W., 212 N.J. at 136)).
Those additional protections are needed because juveniles "are typically
less mature, often lack judgment, and are generally more vulnerable to
pressure than adults." M.P., 476 N.J. Super. at 263 (quoting State in Interest
of A.A., 240 N.J. 341, 354 (2020)). Accordingly, "the greatest care must be
taken to assure that a juvenile's admission is voluntary, in the sense not only
that it was not coerced or suggested, but also that it was not the product of
ignorance of rights or of adolescent fantasy, fright or despair." Id. at 264
(quoting A.A., 240 N.J. at 354 (internal quotation marks and citation omitted)).
A-2287-22 44 To that end, juveniles in this State have the right to have a parent or guardian
present when they are interrogated. Presha, 163 N.J. at 322. In A.A., the
Court recently confirmed that "[t]he protections outlined in Presha remain
good law." 240 N.J. at 358.
We note the Presha doctrine applies to all interrogees under the age of
eighteen.14 The Court held, "[r]egardless of the juvenile's age, law
enforcement officers must use their best efforts to locate the adult before
beginning the interrogation and should account for those efforts to the trial
court's satisfaction." 163 N.J. at 308 (emphasis added). Accordingly, the fact
that an interrogee is close to the age of majority does not excuse the obligation
police have under New Jersey law to make reasonable efforts to secure the
participation of a parent or legal guardian. Stated another way, police may not
subjectively determine whether a parent is needed based on their assessment of
the juvenile's maturity. Rather, the right to have a parent attend exists up to
the moment the suspect reaches the age of majority.
14 The Presha Court imposed additional safeguards for juveniles under the age of fourteen, holding, "We will apply a different standard in that context, namely, the adult's absence will render the young offender's statement inadmissible as a matter of law, unless the parent or legal guardian is truly unavailable." 163 N.J. at 308. Those additional safeguards do not apply in this case.
A-2287-22 45 However, in determining the impact of a parent-participation issue on
the ultimate question of voluntariness, a reviewing court may account for a
juvenile's age, maturity, and experience with the criminal justice system. In
other words, those suspect-specific characteristics are accounted for, not in
whether the juvenile is entitled to have a parent present, but rather in the
weighing stage of the TOC analysis we summarized in Section II.B.
In Presha, for example, the Court "emphasize[d] that, because of his
advanced age and the fact that he had been arrested on fifteen prior occasions,
defendant was familiar with the criminal process at the time of his statement."
163 N.J. at 317. The Court ultimately ruled that the State had carried its
burden of demonstrating the seventeen-year-old defendant voluntarily waived
his rights, notwithstanding the absence of a parent, holding:
[D]efendant's age and familiarity with the criminal process, his clear desire to be interviewed without a parent present, the presence of a parent at the outset of the questioning, and his fair treatment by police . . . compel us to conclude that defendant's will was not overborne by investigators, the critical factor in this inquiry.
[Id. at 318.]
The Presha Court's ultimate holding underscores that the parental-
participation rule "does not displace the totality-of-the-circumstances test but
rather is a critical part of it." M.P., 476 N.J. Super. at 267. Indeed, although
A-2287-22 46 the Presha Court ultimately affirmed the admissibility of the defendant's
statement, as we have noted, it characterized the presence of a parent as a
"highly significant factor" in the totality-of-the-circumstances analysis, adding
that "[b]y 'highly significant factor' we mean that courts should give that factor
added weight when balancing it against all other factors." 163 N.J. at 315.
F.
Distinguishing Among the Different Parental Functions Served During a
Custodial Interrogation
In applying the Presha doctrine, we must consider what it means for a
parent to be "present" or "absent," especially given the warning tendered in
State in re A.S. that "mere presence of a parent is insufficient to protect a
juvenile's rights." 203 N.J. 131, 148 (2010). The facts of the present case
require us to identify and distinguish between the various functions a parent
may serve at the outset of and throughout an interrogation session.
The Presha Court noted that an attending parent can "offer a measure of
support in the unfamiliar setting of the police station." 163 N.J. at 314. In
such a situation, the Court reasoned, "the parent serves as a buffer" between
the juvenile and police and is "in a position to assist" the juvenile "in
understanding their rights, acting intelligently in waiving those rights, and
otherwise remaining calm in the face of an interrogation." Id. at 315. "By
A-2287-22 47 elevating the significance of the adult's role in the overall balance," the Court
held, "we are satisfied that the rights of juveniles will be protected in a manner
consistent with constitutional guarantees and modern realities." Ibid.; see also
A.S., 203 N.J. at 147-48 (reiterating these principles). In A.A., the Court
recently amplified Presha, holding that the practice of providing an
opportunity for the parent and child to confer privately after the administration
of Miranda warnings "would enable parents to help children understand their
rights and decide whether to waive them—as contemplated in Presha." 240
N.J. at 359.
As we have noted, in A.S., our Supreme Court commented that "mere
presence of a parent is insufficient to protect a juvenile's rights." 203 N.J. at
148. "In order to serve as a buffer," the Court explained, "the parent must be
acting with the interests of the juvenile in mind." Ibid. However, as the Court
recognized, "[t]hat is not to say that a parent cannot advise [their] child to
cooperate with the police or even to confess to the crime if the parent believes
that the child in fact committed the criminal act." Ibid.; see also State ex rel.
Q.N., 179 N.J. 165 (2004) (finding a juvenile's confession was voluntary even
though the mother urged her son to confess and then left the interrogation
room).
A-2287-22 48 We glean from the case law that the "buffering" role contemplated in
Presha entails at least three analytically distinct protective functions that a
parent may perform during a child's custodial interrogation: (1) providing a
supporting presence to help dispel the unfamiliarity and inherent coerciveness
of a stationhouse interrogation; (2) providing assurances to the child that
interrogators will be deterred from using overly aggressive, "third degree"
tactics; and (3) providing advice to the child both on whether to initially waive
Miranda rights and also on whether to assert a Miranda right during the
ensuing interrogation.
The third function—giving meaningful and timely advice throughout the
interrogation session—is distinct because it involves active participation, not
just passive presence. A parent who interacts with the interrogating officers
and child provides more than emotional support. The advisory role is
especially important for purposes of the language proficiency issues raised in
this case because that function presupposes the parent not only understands the
child's legal rights but also understands the conversation in which those rights
might be imperiled.
In M.P., we commented that "[t]he actual role played by a parent during
a stationhouse interrogation—whether as a 'buffer' or instead as an adjunct law
enforcement interrogator—is a fact-sensitive question to be determined on a
A-2287-22 49 case-by-case basis." 476 N.J. Super. at 267. In other words, "a parent's
participation may militate for or against a finding of voluntariness depending
on the circumstances." Ibid. (citing A.A., 240 N.J. at 358 (noting the parent's
conduct during the interrogation in that case "upended the model envisioned in
Presha")).
Finally, with respect to the various roles that a parent can play while
participating in a child's interrogation, we would be remiss if we did not note
that in this case, the detectives treated Montiel as a potential witness, posing
questions directly to her and soliciting her opinion on whether her son was the
person shown in the surveillance videos they played during the interrogation
session. At another point during the interrogation, in response to defendant's
claim that he was asleep from 10:00 p.m. on the night in question until about
5:00 a.m. the next morning, when Montiel called him, Velarde asked Montiel
in Spanish when she called her son and whether she still had a record of the
call in her phone.
We are aware of no New Jersey precedent that addresses this situation.
We note that here, Montiel's answers to the detectives' questions were not
inculpatory; she steadfastly maintained that defendant was not the person
depicted in the videos detectives showed her and her phone call log
corroborated defendant's account. Accordingly, while the detectives' questions
A-2287-22 50 to Montiel posed a risk of creating a rift between her and her son, as it
happens, no conflict of interest came to fruition.
For that reason, we do not consider the detectives' questions posed to
Montiel to be a relevant factor in this case. Cf. A.S., 203 N.J. at 154-55
(noting that a parent whose interests "clash" with the juvenile's due to the
parent's relationship with the victim or another involved in the investigation
might not be able to "fulfill the role envisioned in Presha"). We nonetheless
caution that treating an attending parent as a fact witness, rather than as a
buffer, is a risky interrogation practice, one that easily could turn the parent
against the child and thereby "upend" the protective role contemplated in
Presha. A.A., 240 N.J. at 358. Relatedly, if a parent were to provide an
inculpatory answer to a police question, the practical effect might be to compel
the child to respond to the parent's answer. Such compulsion would bear
directly on the voluntariness of the child's response and ensuing statements.
III.
LANGUAGE BARRIERS UNDER NEW JERSEY LAW
Before turning to the intersection of language barriers and the parental
function described in Presha, we consider how New Jersey self-incrimination
law addresses language proficiency in general. Our Supreme Court has long
acknowledged that "[t]he problem of communicating Miranda rights to non-
A-2287-22 51 English-speaking defendants is important, particularly in a state with so
diverse a population." State v. Mejia, 141 N.J. 475, 503 (1995), superseded by
constitutional amendment on other grounds, N.J. Const. art. I, ¶ 12. Miranda
presupposes "meaningful advice to the unlettered and unlearned in language
which [the defendant] can comprehend and on which [the defendant] can
knowingly act." State v. Bode, 108 N.J. Super. 363, 367 (App. Div. 1970)
(quoting Coyote v. United States, 380 F.2d 305, 308 (10th Cir. 1967)). Cf.
State v. Marquez, 202 N.J. 485, 508 (2010) (noting with respect to the police
obligation to inform an arrested motorist of the consequences of refusing to
take a drunk driving breath test that "reading the standard statement to
motorists in a language they do not speak is akin to not reading the statement
at all"). Our Supreme Court has thus acknowledged that a language barrier is
among the factors a court may consider when evaluating the voluntariness of a
Miranda waiver. See State v. Tillery, 238 N.J. 293, 317 (2019) ("[C]ourts
consider the explicitness of the waiver, language barriers, and the time lapse
between the reading of Miranda rights and the actual questioning or
incriminating oral statement." (emphasis added) (citation and internal
quotation marks omitted)). 15
15 We note that the New Jersey Judiciary's Language Access Plan (LAP) states that the Judiciary "shall provide equal access to court proceedings, programs
A-2287-22 52 Most cases that discuss language barriers in the self-incrimination
context focus on the language proficiency of the interrogee rather than a parent
who attends a juvenile's interrogation. We find helpful guidance on this
distinct question in State in Interest of J.F., 286 N.J. Super. 89 (App. Div.
1995). In that case, we concluded that the juvenile defendant's Spanish -
speaking guardian, though physically present, was "effectively excluded" from
___________________________ and services for all people, including persons who are limited English proficient (LEP)" and requires interpretation services "[w]here an individual who is LEP needs an interpreter to understand and fully participate in the justice process." Admin. Off. of the Cts., Admin. Directive #21-23, NJ Judiciary Language Access Plan (LAP) 11 (Nov. 14, 2023). Similarly, N.J.S.A. 34:1-69.10 mandates the appointment of a qualified interpreter to assist a hearing-impaired parent of a juvenile: (a) in any case before any court or grand jury; and (b) at all stages in any proceeding of a judicial or quasi - judicial nature before any State agency or county or municipal governing body or agency.
While the LAP applies only to judicial or quasi-judicial proceedings, and has not been extended to stationhouse interrogations conducted by law enforcement officers, we believe the rights at stake during a custodial interrogation are comparable in importance to the rights at stake in judicial proceedings such as those before a grand jury. Furthermore, our Supreme Court, through case law and its rulemaking authority, has imposed procedural requirements on law enforcement agencies with respect to stationhouse interrogations. See, e.g., R. 3:17 (establishing standards for electronic recordation). We note that, in this case, there was testimony at the suppression hearing that there was no set procedure for police to decide when and how to provide a translation for the benefit of a parent. We believe it would be appropriate for the Supreme Court Committees on Criminal and Family Practice to consider the need for and benefit of rules regarding translation services for interrogees in general, and for parents or guardians of juvenile interrogees in particular, to facilitate their meaningful participation.
A-2287-22 53 the interrogation because it was conducted entirely in English. Id. at 96. We
nonetheless declined to hold that the juvenile's confession was per se
inadmissible. Id. at 101.
In J.F., an English-speaking officer testified that during the
interrogation, his Spanish-speaking colleague read the English-version
Miranda form to the guardian in Spanish, and a waiver was obtained. The
remainder of the interrogation was conducted in English, except that at the
very end, the bilingual officer asked both the defendant and his guardian
whether it was "a voluntary statement," in both English and Spanish. Id. at 95-
96.
On appeal, we found that the transcript of the statement "reflect[ed]
difficulty on [the guardian's] part in understanding the [Miranda] warnings and
the waiver thereof." Id. at 95. We further commented that it "could as well be
said" that because the interrogation was conducted in a language the guardian
did not understand, she was "unable to provide any support, assistance, or
guidance" to the defendant, and was "effectively excluded from his custodial
interrogation." Id. at 96.
But we also determined that the record contained no indication that the
defendant's statement was coerced, or that any "unfair procedures" were used
to procure a confession. Id. at 100. We noted, for example, that the
A-2287-22 54 questioning was not "lengthy" or "drawn-out," and did not involve improper
"psychological pressures." Ibid.
We stated that we were reluctant to conclude that "a juvenile's
confession is per se inadmissible" whenever a parent or guardian cannot "fully
. . . effectuate[]" their role during the interrogation, particularly where the
questioning is otherwise properly and fairly conducted. Id. at 101. We further
held that despite the interrogating officers' "failure to ensure that [the
guardian] could fully comprehend what was occurring during the interview by
translating it for her into Spanish," her "presence alone may have provided
some source of support for [the defendant], as well as a form of protective
buffer from overbearing police procedures." Id. at 100. We noted that while
the guardian "may not have been able to understand the words . . . certainly
she could have observed the tone and demeanor during the questioning and
would, thereby, have been alerted to the possibility of oppressive or coercive
tactics employed." Id. at 100-01.
We agree with the J.F. court's conclusion that the failure to translate for
an attending guardian or parent does not require automatic suppression, at least
where the decision to conduct the interrogation in a language the
guardian/parent cannot understand, without interpretation, is not deliberate —
that is, for the purpose of functionally excluding them. Cf. Presha, 163 N.J. at
A-2287-22 55 318 ("It is difficult for us to envision prosecutors successfully carrying their
burdens in future cases in which there has been some deliberate exclusion of a
juvenile's parent or legal guardian from the interrogation."). Nor do we
disagree with the J.F. court's conclusion that the guardian's presence served a
useful buffering purpose notwithstanding that she could not follow what was
being said during the interrogation.
In reaching its conclusion, however, the J.F. court focused on only two
of the analytically distinct buffering functions we have identified, namely,
comforting support and deterring outwardly oppressive police tactics. The
court did not consider in depth the guardian's potential role as an advisor—a
protective function we deem to be potentially significant. We recognize that
J.F. was decided before Presha and its progeny, and so the court did not have
the benefit of more recent cases that explain, for example, that "the mere
presence of a parent is insufficient to protect a juvenile's rights." A.S., 203
N.J. at 148. Thus, while we embrace many of the principles announced in J.F.,
we do not view it as the final word on how to approach parental-participation
cases involving limited language proficiency.
A-2287-22 56 IV.
DELIBERATE EXCLUSION
We next apply the general legal principles we have discussed regarding
the impact of language barriers to the present facts. We begin by addressing
defendant's contention that the detectives deliberately excluded Montiel from
the interrogation session, relying in part on Presha's stern warning that "[i]t is
difficult for us to envision prosecutors successfully carrying their burdens in
future cases in which there has been some deliberate exclusion of a juvenile's
parent or legal guardian from the interrogation." 163 N.J. at 318. We note
that portion of Presha may have referred only to physical exclusion of a parent,
which clearly did not happen here. However, we extrapolate from the
rationale of Presha and its overriding objective to safeguard the protective role
of a parent that the Court's concerns regarding "some deliberate exclusion of a
juvenile's parent or legal guardian from the interrogation" (emphasis added)
might apply to a parent who remains physically present in the interrogation
room if interrogators purposefully exploit a language barrier by providing
incomplete and untimely translation, thereby preventing a parent from giving
timely advice.
We find further guidance on when a parent's absence is attributable to
police conduct in A.W., 212 N.J. 114. In that case, a bilingual thirteen-year-
A-2287-22 57 old juvenile confessed after his Spanish-speaking father agreed to leave the
interrogation room. A.W. argued to the Supreme Court that "his father's
absence was inappropriately procured by the detective's use of English at
critical points in the interrogation to marginalize his father so that he left the
room without fully understanding the implications of that choice." Id. at 134.
The Supreme Court rejected that argument, reasoning:
The detective's use of English while A.W.'s father was in the room was brief and A.W.'s father did not request that the detective translate the few words exchanged between her and A.W. that were spoken in English. Moreover, the vast majority of the statements that the detective made while speaking English were also spoken in Spanish either before or after that exchange. Nor did anything in the substance of those comments serve to marginalize A.W.'s father. In fact, the videotape shows a father who is fully engaged in listening to what his son had to say and not a man who is being excluded.
[Ibid.]
In the present matter, we are unpersuaded that Montiel's partial
understanding was the product of any deliberate decision or interrogation tactic
attributable to the detectives. It was defendant, not the detectives, who chose
to conduct the interrogation in English. The record suggests that the bilingual
detectives were prepared to conduct the interrogation in Spanish. Presumably,
moreover, defendant knew that his mother would have difficulty understanding
the conversation.
A-2287-22 58 We recognize, however, that although defendant chose to conduct the
interrogation in English, the interrogating officers were still responsible for the
manner in which the conversation was translated for Montiel's benefit. Having
determined that some translation service was needed, it was incumbent upon
the detectives to do it right. In Section V.C, we address whether the
detectives' sporadic summaries were adequate to allow Montiel to follow the
conversation. The key point for purposes of addressing defendant's deliberate -
exclusion contention is that the trial court made no finding on whether the
detectives chose the translation method deliberately, that is, for the purpose of
excluding Montiel within the meaning of the stern warning in Presha, 163 N.J.
at 218. We decline to speculate that the translation method used by the
detectives was a strategic decision to keep Montiel from discouraging
defendant from talking with them. We therefore are unpersuaded that Montiel
was deliberately excluded within the meaning of the Presha warning.
V.
FUNCTIONAL ABSENCE OF A PHYSICALLY PRESENT PARENT
TOC voluntariness analysis is by no means limited to circumstances that
involve purposeful police misconduct. See M.P., 476 N.J. Super. at 290
(rejecting the State's argument that a reviewing court can disregard
circumstances deemed relevant under the case law, such as the juvenile
A-2287-22 59 interrogee's intelligence and education, on the grounds that those
circumstances were not known by or noticeable to police). The fact and
practical effect of the language barrier, not just its cause, must be accounted
for under the TOC analytical paradigm.
Accordingly, we turn next to the more nuanced question of whether and
to what extent Montiel was functionally absent for purposes of fulfilling
defendant's Presha rights by reason of her limited English language
proficiency. As will soon be apparent, this question is complex, involving
several layers of analysis. We start, simply enough, by reaffirming our
holding in J.F. that a parent's/guardian's language barrier does not
categorically require suppression. 286 N.J. Super. at 101. Rather, Montiel's
limited English language proficiency is a relevant circumstance that must be
considered in the context of the TOC paradigm. The critical question is how
much weight should be ascribed to that circumstance.
Before we get to that stage of our analysis, we must address two distinct
foundational questions: first, did Montiel's limited English proficiency keep
her from adequately understanding her son's Miranda rights as explained
during the initial waiver colloquy; and second, did her limited English
proficiency keep her from understanding the post-waiver conversation. The
first question focuses on her ability to understand the law, the second on her
A-2287-22 60 ability to understand what was happening during the interrogation. We
address each fact-sensitive question in turn.
Initial Waiver of Rights
With respect to the first question, the record supports the trial court's
finding that Montiel understood her son's Miranda rights. The officers told her
they were going to read the Miranda form to defendant in English and they
proceeded to do so. Montiel interrupted to ask about the form, at which point
defendant described some of the rights on the form to her in Spanish with
additional explanation in Spanish from one of the officers. The detectives told
her that everything they had read to defendant in English was "on the paper"
they had given her, referring to the Spanish-version Miranda form. An officer
asked, "Do you want me to read it in Spanish?" She replied, "No. It's okay
already." The officers then continued going through the English version of the
form with defendant. Both defendant and Montiel signed the English-version
form.
After some additional discussion, the topic of the Miranda form
resurfaced. Detective Flores asked Montiel in Spanish if she "underst[ood]
this form that [defendant] filled [out]," and asked if she had any questions.
Montiel replied, "Well, I—sin-since I've never filled that I don't really. . . "
A-2287-22 61 Flores said that "in this country you have rights," and Velarde asked defendant,
"Do you want me to read it to her in Spanish?" Defendant replied, "Yeah.
Please. Please." Flores commented, "She can read it in Spanish," whereupon
defendant explained, "She . . . don't know how to read that good."
Velarde proceeded to review the Miranda form in Spanish with Montiel,
reciting the questions on the form and explaining that defendant had answered
"yes" to each of them. Velarde asked Montiel whether she understood each
right. Montiel answered, "Yes." Velarde also read the "waiver of rights"
section of the form. Velarde then asked Montiel, "Is it okay for you?" to
which she answered, "Yes." Flores asked defendant, "Do you have any
questions on this thing? You sure?" and defendant replied, "Yes, sir."
Furthermore, at the suppression hearing, Montiel testified that a detective read
a form to her about her son's rights. When asked if she remembered if she
understood those rights, she replied, "I think so, yes."
In these circumstances, we accept the trial court's determination that
Montiel was apprised of the Miranda rights in Spanish. That factual finding,
which is supported by sufficient credible evidence in the record, effectively
mitigates Montiel's language barrier with respect to the initial waiver of
defendant's rights.
A-2287-22 62 B.
Ongoing Interrogation
That brings us to the more complex and nuanced question of whether
Montiel was precluded from meaningfully participating in the ensuing
interrogation by virtue of her language barrier. At the outset, we note the trial
court determined that Montiel "understood she had the right to stop the
questioning at any time although she was nervous." 16 Accepting the trial
court's conclusion that Montiel understood this right, we proceed to the more
critical fact-sensitive question, which is not whether she adequately understood
the law, but rather whether she adequately understood the questions the
detectives posed to her son and the answers he gave to them, all in English. 17
16 See Tillery, 238 N.J. at 315 ("Miranda imposes a fifth requirement: 'that a person must be told that [they] can exercise [their] rights at any time during the interrogation.'" (quoting Miranda, 384 U.S. at 479)). 17 We note that the trial court found Montiel's testimony that she was unable to understand when her son and the police spoke in English "somewhat incredible." The trial court based its determination on "several occasions where [Montiel] would interject in Spanish information directly responsive to the questions being asked of her son in English." There was a specific instance in which police were discussing the placement of a surveillance camera and Montiel interjected in Spanish where certain cameras might be located. We note that the word "camera" has near-identical pronunciation in Spanish and English.
Although we might not have reached the same conclusion as the trial court with respect to Montiel's ability to understand English were it our
A-2287-22 63 That question brings us back to the various "buffering" functions that a
parent can perform while attending an interrogation session. A parent's
language barrier affects these distinct roles differently. We are satisfied, for
example, that a parent can, by their physical presence, provide "comforting
support" to the child regardless of language proficiency. So too we are
satisfied that a parent's physical presence might discourage police from using
outwardly aggressive tactics. But mere presence certainly does not suffice
with respect to the role of providing advice on whether to invoke a
constitutional right or on how to respond to an interrogator's question. That
role necessarily presupposes that the parent can understand the questions being
propounded to their child. We deem the advisory function to be especially
important among the various protective roles in part because it gives meaning
to the principle explained in A.S. that "the mere presence of a parent is
insufficient to protect a juvenile's constitutional rights." 203 N.J. at 148. The
A.S. Court added, "the parent must be acting with the interests of the juvenile
in mind." Ibid.
We recognize that A.S. can be distinguished on its facts because a
central issue in that case was whether the parent had a conflict of interest, ___________________________ decision to make in the first instance, we accept and apply the trial court's factual/credibility finding in view of the clear rule announced in S.S., 229 N.J. at 380-81.
A-2287-22 64 causing her to advance the interests of her grandson over A.S. by acting as an
interrogator and by pressuring A.S. to confess. Id. at 145-46. But the critical
lesson from A.S. for present purposes is that the Court emphasized the
importance of the parent's advisory role, explaining:
It is not enough, however, to simply reiterate our holding in Presha that a parent's role is a "highly significant factor" in assessing the totality of the circumstances surrounding a juvenile's confession without also elaborating on the role that Presha envisioned the parent serving. In Presha, we explained that "[t]he role of a parent in the context of a juvenile interrogation takes on special significance," because "[i]n that circumstance, the parent serves as advisor to the juvenile . . . ."
[Id. at 148 (quoting Presha, 163 N.J. at 314) (emphasis added).]
We add at this point that the record clearly shows that Montiel wanted to
play an active role and was fiercely protective of her son's interests. This is
not a situation where an attending parent had a conflict of interest, see id. at
154-55; became an "adjunct law enforcement interrogator," see M.P., 476 N.J.
Super. at 267; or otherwise showed a propensity to "upend" the protective role
envisioned in Presha, see A.A., 240 N.J. at 358. The case-sensitive issue here
is whether and to what extent Montiel's language barrier impaired her ability to
perform the protective parental functions she clearly wanted to fulfill. While
Montiel's language barrier might not have impaired the first two protective
A-2287-22 65 functions, her inability to understand the interrogation conversation in real
time could well have weakened her ability to provide her son with meaningful
and timely advice.
The next obvious question is whether and to what degree her limited
English proficiency actually impaired her ability to serve a meaningful
advisory role. That question requires us to consider the nature and quality of
the translation services that were provided to her throughout the course of the
approximately two-hour long interrogation.
Efficacy of the Translation Services Provided
The record shows that the bilingual detectives occasionally summarized
the conversation for Montiel. For example, in a seventeen-minute-long
exchange with defendant in English, the police asked him about his
whereabouts on the day of the shooting, what he was wearing, and who he was
with. When defendant responded, the officers told him that everything he said
was a lie and threatened to charge him with murder. The entirety of this
conversation was then summarized for Montiel in a forty-second synopsis in
Spanish:
Ma'am, um, we're explaining to him that we already know that he has a part on what we’re investigating. At this moment he's telling us that he doesn't have . . . anything to do with nothing. But we're going to . . .
A-2287-22 66 show him video because there's a video. You know, he says that . . . he was sleeping and we know that he wasn't sleeping.
It also bears noting that the time intervals between translation episodes
were not uniform, 18 again suggesting that translating for Montiel was more an
afterthought than a core obligation to safeguard defendant's constitutional right
to meaningful parental participation.
The State does not dispute that Montiel was provided only with periodic
synopses of what was spoken in English. The trial court found that detectives
related "the sum and substance of their prior questions and answers with her
18 For example, in a three-minute English exchange, detectives repeatedly accused defendant of lying, told him he was either "the shooter or the driver," and said they could show him an incriminating video. Defendant maintained his story. Defendant then told his mother, in Spanish, "They're accusing me of killing somebody." This was followed by a brief conversation in Spanish in which defendant retold his account of the night in question to Montiel, and Detective Velarde told her that "there is proof" and defendant was not there "without any reason."
In another three-minute segment, detectives showed defendant and Montiel surveillance footage while telling defendant, in English, that he appeared in the video wearing pants that matched his previous description. Detectives also repeatedly asked him, in English, "that's the house, right?" and "whose car is that?" The conversation only shifted to Spanish when Montiel interrupted to ask if the detectives could make the screen brighter. The detectives then told Montiel, in Spanish, that her son got into the car in the video, that they were asking him if he was "the one driving or the one who shot," and that he was "keep[ing] with his thing, 'I don't know. I was sleeping. I was passed out.'"
A-2287-22 67 son," but she was not given a literal, word-for-word translation of those
questions and answers.
We see two distinct problems with the method used in this case to
explain the conversation in Spanish for Montiel's benefit. First, the substantial
editing process left it to the officers to decide what needed to be shared with
Montiel and what would be redacted. In a high-stakes venue where words
matter, and where proof of a defendant's guilt or innocence may very well
hinge on the turn of a phrase, we believe it is inappropriate to delete any
substantive part of a question or answer from the translation. We recognize
from the transcript that the conversation was often repetitive. But the fact that
questions and answers needed to be repeated is itself an indication of how the
interrogation was going, and whether defendant, for example, was resisting
giving police the answer they wanted to hear. We hold that it is not enough in
these circumstances for a police interpreter to convey a general sense of what
has been asked and answered. With constitutional rights at stake, a parent is
entitled to more than a Cliff Notes abstract of the interrogation dialog.
We have little doubt that had this dialog occurred in a courtroom, a
judge would not tolerate this quality of consecutive translation; while we do
not suggest that interrogation-room translation must meet the standards for
A-2287-22 68 courtroom translation, by any objective measure, this example is
unsatisfactory.
Our concern regarding incomplete summarization is amplified when, as
in this case, the redactions are left to the discretion of law enforcement officers
who are, as the United States Supreme Court put it, "engaged in the often
competitive enterprise of ferreting out crime." 19 Johnson v. United States, 333
U.S. 10, 13-14 (1948). Even assuming interrogating officers act in good faith,
their assessment of what details are important for a parent to know necessarily
reflects their own perspectives and interests.
The second problem is that the sporadic summarization procedure used
in this case impaired Montiel's ability to respond in a timely manner to specific
questions posed to her son or to specific answers that he gave. Here, the
pauses between completed statements in English and their translation into
Spanish was very substantial. If Montiel wanted to object to a question or
wanted to advise her son not to answer and to immediately assert his right to
remain silent, that objection or advice might come well after defendant had
already answered the question, at which point the "cat would be out of the
19 We do not mean to suggest that bilingual officers should not be allowed to serve as interpreters. The point rather is that whoever does the translation should be expected to translate everything that was said during the interrogation, not just selected highlights.
A-2287-22 69 bag." Cf. Bullock, 253 N.J.at 535 (noting in the context of a "two-step"
interrogation that "after an accused has once let the cat out of the bag by
confessing, no matter what the inducement, [the accused] is never thereafter
free of the psychological and practical disadvantages of having confessed"
(quoting State v. Carrion, 249 N.J. 253, 275-76 (2021))).
We do not mean to suggest a parent is constitutionally entitled to a
"simultaneous" translation. 20 Defendant in his appeal brief advocates for
neither simultaneous nor consecutive translation but rather calls for a method
of interpretation that would allow for a parent's "near-contemporaneous"
understanding.
We note the type and quality of translation provided in this case is
starkly different from the situation in State v. Belliard, 415 N.J. Super. 51, 81
(App. Div. 2010). In that case, "[t]he entire interview was translated for
20 We note that there are different types of translation, simultaneous and consecutive. In Diaz v. State, the Delaware Supreme Court explained that "[s]imultaneous interpreting is defined as 'rendering an interpretation continuously at the same time someone is speaking.' Consecutive interpreting is 'rendering statements made in a source language into statements in the target language intermittently after a pause between each completed statement in the source language.'" 743 A.2d 1166, 1182 n. 58 (Del. 1999) (internal citations omitted). See also Admin. Off. of the Cts., Admin. Directive #21-23, New Jersey Judiciary Language Access Plan 50 (Nov. 14, 2023) (explaining that in consecutive interpreting, "the speaker must pause for the interpretation to be put on the record," but in simultaneous interpreting, there are "no pauses for the interpretation").
A-2287-22 70 defendant's mother as defendant spoke." Ibid. We concluded on those facts
that there was "no basis to disrupt the trial judge's findings that defendant's
statements were made voluntarily." Ibid. We recognize that any language
barrier issues presented in this case would have been ameliorated by a similar
translation method.
Impact of the Language Barrier on the Parental Function
Our conclusion that the translation provided in this case was inadequate
does not necessarily mean that Montiel was foreclosed from serving a
meaningful role. As the trial judge correctly noted, we must consider the
extent to which she needed translation assistance to actively participate in the
interrogation. Stated another way, the inherent flexibility of TOC analysis
requires us to do more than find that Montiel faced a language barrier.
Without question, that barrier is a relevant circumstance. But we must go one
step further and assess whether and to what extent her limited English
proficiency actually impaired her ability to perform the Presha parental
functions. We must, in other words, assign weight to this circumstance before
we can register it on the TOC abacus. Here, there are mitigating, ameliorative
circumstances, as found by the trial court, that lessen the impact of the flawed
translation.
A-2287-22 71 Notably, the trial court made a factual finding that despite the fact that
Montiel spoke little or no English, she understood at least some of the
conversation.21 As we have noted, we might not have reached the same
conclusion as the trial court with respect to Montiel's ability to understand the
portions of the conversation spoken in English, but defer to the court's
assessment because this is a factual/credibility finding as to which we must not
substitute our judgment. See note 17. We acknowledge, moreover, that the
trial court's finding is supported by the fact that she participated in the
conversation in Spanish at several points. Whenever she interjected, the
detectives and defendant switched to Spanish to speak to her. Further, Montiel
on occasion offered meaningful comments, including admonitions to defendant
not to "cover" for his friends, and support for defendant's requests that the
detectives look for surveillance cameras.
We nonetheless conclude that the incomplete and delayed translation
provided to Montiel impaired her ability to offer timely advice as she might
have done if she more fully understood what was being said. That is not to
suggest that she did not serve to some degree as a buffer between the
21 Defendant highlights Detective Flores's remark to defendant that his mother "has no clue what the hell is going on." When read in the context of that portion of the interrogation, we agree with the State that Flores meant that Montiel had no clue about the crime that was under investigation, not that she had no clue as to what was transpiring during the interrogation session.
A-2287-22 72 detectives and her son. Cf. J.F., 286 N.J. Super. at 100-01 (noting that the
guardian's presence provided some support even without a complete
understanding of every word that was said in English). Aside from the benefit
of her comforting presence and as a potential guard against oppressive
interrogation tactics, she did, after all, interject occasionally, as the trial court
stressed. The point rather is that Montiel, who was highly motivated to protect
her son's interests, might have served a greater protective role but for her
limited English language proficiency and the manner in which the detectives
addressed her language barrier.
In reaching that conclusion, we acknowledge that it appears from the
electronic recording of the interrogation that defendant was explaining the law
and providing advice to his mother, rather than vice versa. That fact is
relevant in determining the weight given to the language-barrier circumstance
in the TOC totaling process, offsetting to some degree the impact of the
incomplete translation method.
Considering all of these factors, we conclude that Montiel's language
barrier undermined the value of her participation and thus weighs against the
State in the voluntariness calculus, although not heavily. Because she did
serve some buffering function, we decline to apply the full weight
A-2287-22 73 contemplated in Presha when it held that parental absence is a "highly
significant factor." 163 N.J. at 315.
VI.
FAILURE TO PERMIT A PRIVATE PARENTAL CONSULTATION
We next turn our attention to another relevant circumstance pertaining to
Montiel's buffering role—one that does not involve her English language
proficiency. Defendant contends that suppression of his statement is further
required because he was not given an opportunity to consult with Montiel
privately before deciding whether to waive his Miranda rights and speak to the
detectives. We agree that defendant and his mother should have been provided
an opportunity to confer privately after the administration of Miranda
warnings, and we find that the lack of consultation "weigh[s] heavily" in the
totality of the circumstances. A.A., 240 N.J. at 359.
In A.A., our Supreme Court held that police should advise a juvenile of
their Miranda rights in the presence of a parent or legal guardian before either
undertaking any questioning or allowing the parent to speak with the juvenile.
240 N.J. at 358. The Court held that police should then give the juvenile a
"meaningful opportunity to consult with the parent or guardian in private about
those rights." Ibid. The Court added:
That approach would enable parents to help children understand their rights and decide whether to waive
A-2287-22 74 them—as contemplated in Presha. If law enforcement officers do not allow a parent and juvenile to consult in private, absent a compelling reason, that fact should weigh heavily in the totality of the circumstances to determine whether the juvenile's waiver and statements were voluntary.
[Id. at 359 (emphasis added).]
In M.P., we determined that to the extent that A.A. "amplified the
existing totality-of-the-circumstances test" by stating that a lack of a certain
procedure should "weigh heavily" in that analysis, "its rationale should be
given retroactive effect." 476 N.J. Super. at 293. 22
In the matter before us, the detectives did not provide an opportunity for
defendant and his mother to confer privately after the Miranda warnings were
administered. We presume that any such conversation would have been in
Spanish and would have afforded Montiel an opportunity to provide candid
advice to her son on how to balance his desire to clear his name and encourage
police to investigate other suspects against the risk of answering police
questions. (With the benefit of hindsight, we know that defendant did
unwittingly provide inculpatory information by admitting to what he was
wearing on the day of the shooting.)
22 The State in its appeal brief does not argue that the policy to permit a private consultation announced in A.A. on January 15, 2020, should not be applied retroactively to the May 1, 2017, stationhouse interrogation.
A-2287-22 75 Nor are we convinced that the State has offered a "compelling reason"
either to excuse the failure to provide an opportunity for a private conference
or to refrain from according heavy weight to that circumstance. A.A., 240 N.J.
at 359. The State argues that a private consultation was not necessary because
defendant was sufficiently aware of his rights and the magnitude of the
situation, such that he did not need an additional consultation with his mother.
We are unpersuaded.
As we have noted, police may not subjectively determine whether a
parent is "needed" based on their assessment of the juvenile's maturity, since
any such exception could swallow the Presha rule, leaving it to the discretion
of police to decide whether to contact a parent to attend. As a corollary to that
principle, we hold that it is not for police to decide that a private post -warning
consultation is unnecessary based on their assumption that a juvenile
interrogee understands their rights. We reiterate that in this case, defendant
occasionally explained his rights to his mother, rather than the other way
around. But that fact does not establish that a private conversation between
mother and son would have served no purpose. As the A.A. Court recognized,
that conversation "enable[s] parents to help children understand their rights
and decide whether to waive them." 240 N.J. at 359 (emphasis added). In
sum, we decline to conclude—speculatively—that Montiel would not have
A-2287-22 76 been able to provide meaningful and potentially influential advice not only on
whether defendant should waive his rights but also on what he might say to the
detectives if he decided to speak with them. To hold otherwise would be to
devalue the principle that a parent can aid their child in making intelligent
decisions.
The State also suggests that defendant and Montiel's opportunity to
privately confer before Miranda warnings were administered was sufficient.
However, as we held in M.P., "a private consultation between parent and
interrogee before the Miranda waiver colloquy is not a substitute for a
consultation after the Miranda warnings have been administered," as "[w]e
cannot assume that parents know the Miranda rights—and thus can discuss
them intelligently with their children—before those rights are recited by
police." 476 N.J. Super. at 291-92. Indeed, Montiel testified that this was her
first experience with a police interrogation.
Accordingly, pursuant to the A.A. Court's clear instruction, we conclude
that the lack of a post-warning private consultation should "weigh heavily"
against the State when the time comes for us to total up the circumstances
militating for and against a finding of voluntariness. 23
23 We add that the failure to provide an opportunity for a private consultation is distinct from the circumstance(s) pertaining to Montiel's partial absence by
A-2287-22 77 VII.
POLICE COMMENTS REGARDING DEFENDANT'S DETENTION STATUS AND BURDENING THE INVOCATION OF HIS RIGHTS AGAINST SELF-INCRIMINATION WITH A THREAT OF DETENTION
Finally, we address two closely related circumstances that are relevant in
the TOC voluntariness analysis but that do not directly relate to parental
participation.24 Specifically, we consider whether one of the interrogating
detectives misled defendant about his legal status and, in almost the same
breath, burdened defendant's right to confer with counsel.
The pertinent facts can be quickly recounted. When defendant was
advised during the Miranda waiver colloquy that the interrogation would stop
if he wanted a lawyer, he responded that he wished to continue with the
interrogation. Defendant then asked, "[s]o . . . if I wanna leave I could leave,
right?" The detective replied, "[i]f you wanna leave you can leave but you ___________________________ reason of her language barrier. The A.A. private consultation rule applies after Miranda warnings are administered but before the substantive interrogation begins. The weight we accorded to the language barrier issue was predicated solely on the impairment of Montiel's buffering role during the course of the substantive interrogation. (As we noted in Section V.A, Montiel was adequately advised of defendant's Miranda rights in Spanish). Thus, while both circumstances relate to parental participation, we are not "double counting" the failure to permit a private consultation and the limitations on Montiel's advisory role resulting from her language barrier. 24 Of course, any problematic police conduct that occurs during a stationhouse interrogation might be addressed and ameliorated by a parent as part of their buffering role.
A-2287-22 78 must understand that when I leave this room . . . once you say you want a
lawyer I gotta talk to my bosses to see what they [are] gonna do with you."
Defendant shook his head and said he did not need a lawyer but asked again if
he could "go home" if he wanted to leave. Flores said that this would depend
on "what [they] talk[ed] about."
We consider two distinct legal questions arising from this portion of the
interrogation session: (1) whether police misled defendant as to his legal
status and (2) whether they undermined or burdened his right to counsel.
Although we discuss these issues separately for purposes of clarity, in the final
analysis, we combine them, treating them as a single relevant circumstance for
purposes of assigning weight and completing the final TOC balancing step.
General Principles
We begin by acknowledging general legal principles regarding ad hoc
statements made by police during a Miranda waiver colloquy or ensuing
interrogation. In M.P., we cautioned that "[w]hat police tell suspects during
the Miranda waiver colloquy beyond reading verbatim from a form must be
parsed closely." 476 N.J. Super. at 296. We added, "[a]n interrogating
officer's impromptu response to a question can be problematic if it could
A-2287-22 79 reasonably be construed to contradict, deprecate, or undermine the Miranda
warnings." Ibid.
In State v. O.D.A.-C., our Supreme Court stressed that "[c]omments that
contradict and hollow out Miranda warnings can negate their effectiveness and
cast doubt on whether a defendant fully understood and knowingly waived
[their] rights." 250 N.J. at 423. The O.D.A.-C. Court added, "[t]hat said, we
continue to consider the totality of the circumstances to decide whether the
State has proven beyond a reasonable doubt that a defendant knowingly,
intelligently, and voluntarily waived his rights." Ibid. The Court expressly
"[d]ecline[d] to adopt a bright-line rule that would require suppression any
time an officer makes an improper comment during an interrogation." Ibid.
The Court reasoned, "[s]uch an approach would lead to the suppression of
voluntary statements in a number of instances. In contrast, the totality -of-the-
circumstances test can both root out improper police statements that result in
an invalid waiver and recognize knowing and voluntary waivers." Ibid. See
also State v. Cooper, 151 N.J. 326, 355 (1997) (holding that an interrogating
officer's "misrepresentations alone are usually insufficient to justify a
determination of involuntariness or lack of knowledge").
In M.P., we also noted that in gauging the effect of a detective's remark,
the detective's subjective intent is irrelevant. 476 N.J. Super. at 297. Rather,
A-2287-22 80 "[w]hat matters is what [the detective said] and the impact [their] impromptu
remark had on [the juvenile suspect's] understanding of his own rights." Ibid.
Misleading as to Arrest/Detention Status
We first address the concern that Detective Flores may have misled
defendant by suggesting at the outset of the interrogation that he was free to
leave. We are skeptical that defendant could simply have walked out of the
police station and therefore consider whether Flores's answer to defendant's
question was a form of deception designed to induce defendant to waive his
right against self-incrimination.
In State v. Diaz, we reiterated the long-accepted principle that "[p]olice
are permitted, within limits, to use trickery or deception in the course of a
custodial interrogation." 470 N.J. Super. 495, 524 (App. Div. 2022).
However, we drew "a fundamental distinction between police trickery with
respect to the strength of the evidence against an interrogee on the one hand,
and trickery with respect to an interrogee's 'true status' . . . on the other hand."
Id. at 525 (quoting State v. A.G.D., 178 N.J. 56, 68 (2003)). Specifically, in
Diaz, we concluded the police were not permitted to strategically withhold
from the defendant that they were investigating the crime of strict liability for
drug-induced death, N.J.S.A. 2C:35-9, leaving the defendant to believe they
A-2287-22 81 were investigating the far less serious crime of drug distribution. Id. at 518-
22.
In the matter before us, the detectives were forthright in telling
defendant and his mother that they were investigating a May 15 homicide that
occurred on Federal Street. While the circumstances in Diaz are thus
distinguishable, we believe that the overarching concern about misleading a
suspect about their "true status" is not limited to misstatements regarding the
nature of the crime under investigation, but also includes misstatements about
whether the suspect is or will be detained, especially when, as in this case, the
interrogee repeatedly expresses a desire to go home following the
interrogation.
In this instance, we note that Flores kept alive defendant's hope that he
would go home after the interrogation, asking about two hours into the
interrogation, "What if I told you there's a possibility you might not go home?"
But toward the end of the interrogation, when defendant asked if he was being
arrested, Flores replied, "I told you a couple of times already . . . yes you are,"
adding that this was based "on the evidence we have against you." The
sequence of questions posed by defendant and answers tendered by the
A-2287-22 82 detectives suggest that the decision to detain defendant had already been made,
contrary to what detectives told him at the outset of the interrogation. 25
While misleading defendant about this aspect of his legal status is
problematic, that circumstance standing alone might not carry significant
weight in our TOC voluntariness assessment. The real problem with Flores's
comment at the outset of the interrogation that defendant was free to leave is
that it set the plate for his immediately ensuing remark, which implied that
defendant's arrest status might change for the worse if he terminated the
interrogation prematurely by asking to confer with an attorney. Because the
statement that defendant was free to leave and the statement regarding the
effect of asking for a lawyer are so closely tied, to avoid what might be
described as "double counting," we consider them to be a single circumstance
25 Under New Jersey law, when a juvenile complaint or arrest warrant is filed, police may not interrogate the juvenile without the consent of counsel. See State ex rel. P.M.P., 200 N.J. 166, 178 (2009). Police and prosecutors therefore have an incentive to initiate and complete stationhouse interrogations before applying to a judge for a juvenile delinquency complaint or arrest warrant. Defendant does not argue—and therefore we do not address— whether the detectives deliberately delayed filing a delinquency complaint to avoid triggering defendant's right to counsel. Cf. State v. Sims, 250 N.J. 189, 213-16 (2022) (holding that police need only advise an adult interrogee of their charges if a criminal complaint or arrest warrant has been filed, but noting that if law enforcement officers deliberately delay seeking a warrant to avoid disclosing to the arrestee the charges they face, the trial court should consider evidence of such "bad-faith" conduct as part of the totality-of-the- circumstances.).
A-2287-22 83 militating against voluntariness for purposes of assigning weight under the
TOC paradigm.
Burdening the Invocation of the Right to Counsel
We find it troubling that Detective Flores's response to defendant's
question about whether he was free to leave suggested that the decision to
release or detain him had yet to be made and might depend on whether
defendant halted the interrogation by asking to confer with counsel. Even so,
Flores's remark does not require automatic suppression. Rather, it is a
circumstance to be considered as part of our TOC analysis. In reaching that
conclusion, we draw a distinction between denying or disregarding a request to
speak with an attorney—which triggers automatic suppression 26—and
undermining a Miranda right, which is treated as a factor in assessing the
totality of the circumstances. In this instance, because defendant had just
made clear that he was not asking for an attorney, Flores's remark was not a
26 See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), as amplified by our Supreme Court in State v. Rivas, 251 N.J. 132, 154 (2022) (diverging from federal law and explaining that under New Jersey law, if a suspect's "'words amount to even an ambiguous request for counsel, the questioning must cease, ' unless the officer makes additional neutral inquiries that clarify that the suspect desires to waive the presence of counsel" (citation omitted)).
A-2287-22 84 response to an ambiguous request for an attorney that had to be clarified under
New Jersey law. See Rivas, 251 N.J. at 154. 27
The remark was nonetheless improper because it could reasonably be
construed as a threat of repercussion if defendant were at any point to invoke
his constitutional right to an attorney. See M.P., 476 N.J. Super. at 296 ("An
interrogating officer's impromptu response to a question can be problematic if
it could reasonably be construed to contradict, deprecate, or undermine the
Miranda warnings."). Indeed, suggesting negative consequences—immediate
incarceration—for invoking a constitutional right is a quintessential example
of burdening that right.
Viewed from the opposite perspective, the detective's remark might also
be construed to dangle the prospect of a form of leniency—release without
charges—if defendant refrained from asking for a lawyer during the
interrogation. That too is improper.
27 We note that the Court in State v. Alston cautioned that officers may not use their obligation to clarify a suspect's ambiguous request by asking "questions that 'operate to delay, confuse, or burden the suspect in [their] assertion of [their] rights.'" 204 N.J. 614, 623 (2011) (emphasis added) (quoting State v. Johnson, 120 N.J. 263, 283 (1990)). In State v. Dorff, we "interpret[ed] that important admonition to prohibit interrogating officers not only from posing questions that burden the suspect in asserting [their] rights, but also from . . . making comments that effectively burden the assertion of the suspect's right to speak with an attorney." 468 N.J. Super. 633, 647-48 (App. Div. 2021) (emphasis added).
A-2287-22 85 In Hreha, our Supreme Court provided general guidance on how to
assess a promise of leniency for purposes of determining its impact on the
voluntariness of a suspect's confession. 217 N.J. 368. The Hreha Court noted
that a defendant's confession may be found to be involuntary if the
interrogating officers extended a promise so enticing as to induce that
confession. Id. at 383. In L.H., the Court explained that a promise of leniency
is but "one factor to be considered in determining voluntariness." 239 N.J. at
46. A reviewing court must weigh the enticement of the promise against the
defendant's power to resist. Id. at 43. The Court in that case held that a false
assurance that if defendant told the truth he would not go to jail directly
negated the Miranda warnings and induced defendant to confess. Id. at 48-49.
Whether viewed as a threat of punishment for exercising a constitutional
right or an offer of a reward for waiving that right, or both, we deem the
detective's remark to be improper. Our Supreme Court in O.D.A.-C. recently
compiled a non-exhaustive list of instances where interrogator comments
contradicted or otherwise undercut the Miranda warnings. 250 N.J. at 421-23.
We now add to that list.
Furthermore, we deem this circumstance to be highly significant on the
question of voluntariness. Indeed, it comes close to providing an independent
basis to suppress defendant's statement. See Bullock, 253 N.J. at 534 (noting
A-2287-22 86 that even one relevant circumstance may permit the conclusion that a
confession was involuntary). Although Flores's troubling remark was brief, it
came at a critical juncture—the point during the Miranda rights colloquy when
the officer was explaining defendant's right to confer with an attorney. The
impact of Flores's remark is clear, as shown by defendant's animated and
immediate response, which was, "No. . . I don't need a lawyer. I'm sayin' like,
if I wanna go home. . . I wanna leave, like right—right here . . ." Defendant
clearly understood Flores to be explaining the negative consequences of asking
for an attorney and wanted to avoid those consequences by stressing that he
was not asking to speak with counsel. We reiterate that in gauging the effect
of Flores's remark with respect to the question of voluntariness, the detective's
subjective intent is irrelevant. See M.P., 476 N.J. Super. at 297. In other
words, it does not matter whether Flores intended to dissuade defendant from
asking to confer with a lawyer. Rather, "[w]hat matters is what [the detective
said] and the impact [his] impromptu remark had on [defendant's]
understanding of his own rights." Ibid.
We therefore give Flores's remark highly significant weight under the
TOC paradigm given the heightened importance accorded under New Jersey
law to the right to confer with an attorney. See State v. Alston, 204 N.J. 614,
621 (2011) (describing the right to counsel to be fundamental under New
A-2287-22 87 Jersey law). We also take note that by his repeated questions to the detectives
about his present status, it was clear that defendant placed great importance on
being released following the interrogation. With respect to this circumstance,
therefore, we see no mitigating facts that lessen the impact of the implicit
threat/promise on defendant's decision whether to invoke his Miranda rights.
And at the risk of "double counting" a circumstance we have already
accounted for, we note in the interest of completeness that defendant was
effectively denied meaningful assistance or support from his mother with
respect to this specific threat/promise because she was not in the room at the
time, and neither defendant's question nor the detective's troubling response
was ever translated for her.
VIII.
TOTALING THE RELEVANT VOLUNTARINESS CIRCUMSTANCES
The time has come for us to add up the relevant circumstances militating
for and against the State. We emphasize that there is no mathematical formula
to apply, no statistical technique for "norming" an arithmetic score, and no
algorithm or evidence-based decision-making framework to inform our
judgment in balancing competing circumstances that are as qualitatively
different from each other as apples and oranges.
A-2287-22 88 We begin by summarizing the circumstances that support the trial court's
finding of voluntariness. As in both Presha and J.F., the record in this case
contains no evidence of improper coercive police tactics during the course of
questioning, putting aside the burdening of the right to counsel before
substantive questioning commenced as addressed in Part VII. 28 We do not
mean to suggest, however, that the detectives did not use tactics that exerted
psychological pressure on defendant to change his story and confess.
Throughout much of the interrogation, the detectives repeatedly told defendant
that they knew he was lying to them and that they knew he was involved in the
shooting. We believe these constitute "persistent techniques designed to 'wear
down' the interrogee." State v. Amang, 481 N.J. Super. 355, 392 (App. Div.
2025) (citing Rivas, 251 N.J. at 155 (quoting Smith v. Illinois, 469 U.S. 91, 98
(1984))).
The detectives' dogged persistence, while by no means inappropriate per
se, cannot be assessed in isolation from the relevant factors that militate
strongly against the State. Rather, as part of the "totaling" step in the TOC
analysis, we must consider the dynamic, synergistic effect of the various
28 In light of that burdening of defendant's right to confer with an attorney, we are reluctant to characterize the situation as "fair treatment by police," which is one of the circumstances the Presha Court considered in concluding that the "defendant's will was not overborne by investigators." 163 N.J. at 318.
A-2287-22 89 relevant factors as they bear on the ultimate question of whether defendant's
will was overborne. Notably, three police-controlled circumstances in this
case—failing to adequately translate for Montiel, failing to provide an
opportunity for a private post-warning conference between defendant and
Montiel, and burdening defendant's right to ask to confer with counsel —
collectively made defendant more vulnerable to lawful but calculated
interrogation tactics designed, in this instance, to convince him to admit that
he was lying when he repeatedly claimed, in response to the detectives'
repetitive questions/comments, that he had taken Percocet, passed out, and was
not involved in the shooting. The issues relating to parental participation, for
example, deprived defendant not only of the benefit of his mother's timely
advice but also prevented her from telling the detectives to stop repeating
accusatory comments concerning defendant's insistence that he had passed out.
Even more significantly, the improper burdening of defendant's right to
interrupt the interrogation to confer with counsel might have inhibited
defendant from exercising that right earlier, 29 inducing him to endure the
detectives' repeated accusations he was lying in the hope and expectation that
29 We are mindful that defendant's admission concerning the clothes he was wearing was made before the detectives told defendant they knew he was lying. However, the entire (redacted) recording was played to the jury, not just his admission concerning the pants he was wearing on the day of the shooting.
A-2287-22 90 he would be released so long as he was not the one to terminate the session.
As we have noted, that circumstance is especially concerning and is nearly
sufficient by itself to render defendant's statement involuntary.
However, on the other side of the ledger, the interrogation was not
unduly long, and defendant was given several comfort breaks and food on at
least two occasions. Furthermore, the trial court found that defendant
remained "calm and composed" during questioning, that he did not appear to
be "fearful or fazed," and that he consistently maintained his version of events
when the officers pressed him.
We are especially mindful that the trial court had the opportunity to view
the electronic recording of the stationhouse interrogation and thus was able to
ascertain "defendant's overall deportment and conduct as well as the officers'
demeanor and conduct throughout the custodial interrogation." See A.M., 237
N.J. at 401. The recording confirms that defendant was persistent in his
assertion of innocence once he was told he was a suspect in the drive -by
shooting. See M.P., 476 N.J. Super. at 300 (highlighting that M.P. wanted to
speak to police to explain his limited role in the murder under investigation).
It is not lost on us that the question of whether an interrogee's will was
overborne is "the critical factor in this [voluntariness] inquiry." Presha, 163
N.J. at 318. See also O.D.A.-C., 250 N.J. at 420 ("Due process requires the
A-2287-22 91 State to 'prove beyond a reasonable doubt that a defendant's confession was
voluntary and was not made because the defendant's will was overborne.'"
(quoting L.H., 239 N.J. at 42)). But outward appearances may not present a
complete picture of what an interrogee is thinking and what might be
motivating them to engage in conversation with police. As we noted in M.P.,
some circumstances "remain relevant notwithstanding they may not manifest
outwardly during an interrogation." 476 N.J. Super. at 290. Defendant may
have been "calm," "composed," and "at ease," as the trial court found, but still
operating under a misapprehension that if he asked for a lawyer he would be
arrested.
That brings us back to the factors arrayed on the other side of the
voluntariness ledger. As we have noted, some circumstances carry highly
significant weight by operation of case law. Montiel's language barrier
impaired her ability to perform the buffering function envisioned in Presha,
although the weight we ascribe to that factor is offset, for reasons we have
explained, so that it does not weigh as heavily against the State as it would had
she been completely excluded or ignored. The failure to provide defendant
and his mother an opportunity to consult privately after the administration of
the Miranda warnings, in contrast, is a comparatively straightforward factor
that "weighs heavily" against the State in accordance with the ruling in A.A.
A-2287-22 92 And most significantly, the detective's inappropriate remarks to defendant that
undermined and burdened his right to confer with counsel weigh heavily
against the State in our view. 30
The State has cited no published precedent in this State where the
Supreme Court or Appellate Division found a statement to be admissible in the
face of two "highly significant" circumstances militating against a finding of
voluntariness.31 We reiterate that TOC analysis goes well beyond counting the
absolute number of factors arrayed on either side of the voluntariness ledger,
see Bullock, 253 N.J. at 534 (quoting Hreha, 217 at 384).32 But in this
instance, the presence of two heavily-weighed circumstances is significant,
and, ultimately, is more than the State can overcome.
30 As noted in Section VII.B, we have essentially combined the detective's two, near-simultaneous remarks, treating them as a single circumstance militating against voluntariness. 31 Here, we have the failure to provide for a private parent-child consultation and the burdening of the right to counsel as separate circumstances both rated as highly significant. We also have the language-barrier impairment of the parent's advisory role, which militates against the State but in this instance carries less weight than the other concerning circumstances. 32 In instructing reviewing courts to conduct a qualitative rather than quantitative assessment, the Court in Hreha meant that courts cannot just add up the absolute number of factors listed on each side of the ledger. See also State v. Kruse, 105 N.J. 354, 363 (1987) (noting that sentencing decisions are based on a qualitative rather than quantitative analytical process).
A-2287-22 93 In applying the qualitative assessment required in TOC analysis when, as
here, there are separate factors weighing against the State based on police
conduct, a rough analogy can be drawn to the cumulative error doctrine. In
State v. Butler, our Supreme Court recently explained that when assessing the
combined effect of several prosecutor/trial court errors, "[w]e do not focus our
analysis on the number of mistakes but rather consider whether the errors
together amount to an injustice." __ N.J. __, __ (2026) (slip op. at 33)
(citation omitted). The Court added, "[w]here an error involves a
constitutional right, reversal is warranted unless we can conclude beyond a
reasonable doubt that the cumulative errors were harmless." Ibid. (citation
omitted).
Here, the circumstances that involve problematic police conduct,
whether in the form of commissions (e.g., improperly burdening the right to
counsel) or omissions (e.g., failure to provide an opportunity for a private
parent-child consultation after warnings are given but before a waiver is
executed and failure to adequately translate for a parent throughout the course
of the interrogation), have more impact than the relevant factors in this case
that suggest voluntariness, such as providing food and comfort breaks, and
defendant's outward appearance of being "calm," "composed," and "at ease" as
found by the trial court.
A-2287-22 94 Relatedly, the fact that defendant appeared to want to give—and
repeat—his account of the night in question was itself a response to the
detectives' repetitive and forceful assertions that he was lying to them when he
told them that he had taken Percocet and was passed out. While that
interrogation tactic is not inappropriate, it did put pressure on defendant to
relent and abandon his claim that he was sleeping when the shooting occurred.
When the circumstances militating against the State are viewed together,
we are led to conclude that the prosecution did not meet its burden of proving
that defendant's waiver of rights and ensuing statement were given voluntarily
under New Jersey law, which, we cannot overstate, requires the State to prove
voluntariness beyond a reasonable doubt. See O.D.A.-C., 250 N.J. at 413.
Applying that elevated standard of proof and given that we decide the ultimate
question of voluntariness de novo, we are constrained to reverse the order
denying defendant's suppression motion.
IX.
HARMLESS ERROR
Defendant argues that the admission of his stationhouse interrogation
statement was reversible error because "while [he] did not confess during the
interrogation, the State clearly saw the statement as inculpatory, given their
decision to play it in its entirety at trial." We note that while the State
A-2287-22 95 contends the statement was properly admitted, it does not respond to this
contention or argue in the alternative that admission of the statement was
harmless. See New Jersey Dep't of Env't Prot. v. Alloway Twp., 438 N.J.
Super. 501, 505 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed
waived upon appeal.").
Constitutional errors are considered "fatal error, mandating a new trial,"
unless [the court] can determine that the error was "harmless beyond a
reasonable doubt." State v. Cabbell, 207 N.J. 311, 338 (2011) (citations
omitted); see also State v. Carlton, 262 N.J. 629, 642 (2026) ("[B]efore a
constitutional error can be considered harmless, the court must be convinced
'beyond a reasonable doubt' that the error did not affect the outcome.")
(citation omitted). Here, defendant did not confess. On the contrary, he
steadfastly asserted his innocence, but, as it turned out, unwittingly provided
inculpatory evidence to the State by admitting to the clothing he was wearing
on the day of the shooting. The importance of this evidence is shown not only
by the fact that the prosecutor played the entire (admissible) portion of the
electronic recording of the interrogation for the jury, but also by the
prosecutor's comments in summation. The prosecutor highlighted statements
defendant made during the interrogation in his closing argument, urging the
jury to focus on defendant's admission as to the pants he was wearing on the
A-2287-22 96 day of the shooting. That admission was significant because the State's
identification proofs were not overwhelming. There was no surveillance video
of the shooting, only of the suspected crime vehicle traveling to and from the
area of the crime scene. No eyewitness to the shooting identified defendant or
Vargas. There was no forensic evidence. The surveillance videos were grainy,
and the only trial witness who identified defendant from the pieced -together
surveillance videos was an officer who knew defendant from his participation
in a junior police program when he was ten or eleven years old.
Defendant's admission was therefore impactful in a case that hinged on
proving the identity of the culprits based on video surveillance evidence. In
these circumstances, the admission of the statement was not harmless beyond a
reasonable doubt. Accordingly, we are constrained to vacate defendant's
convictions and remand for a new trial.
X.
REMAINING TRIAL ISSUES
Because we overturn defendant's convictions and remand for a new trial
based on the trial court's pretrial suppression ruling, we need not reach
defendant's contentions regarding subsequent trial errors. We address all but
one of those issues in codefendant Vargas's appeal, and our opinion in that
case can provide guidance to the trial court on remand in this case as needed.
A-2287-22 97 However, Vargas does not contend on appeal, as does defendant, that the trial
court "committed reversible error by granting the jury unfettered access to the
[S]tate's surveillance video compilation during deliberations." We therefore
take this opportunity to provide guidance to the trial court on that contention
for purposes of a retrial.
The admission of video surveillance evidence has become commonplace
at criminal trials—a trend that no doubt will accelerate as more governmental,
commercial, and residential surveillance cameras are installed across the state.
While the final word has not been written on the multitude of jurisprudential
and practical issues surrounding the admission, narration, and playback of
surveillance video evidence, the case law as it presently stands suggests, as a
general principle, that video playbacks should be conducted in the courtroom
under the supervision of the judge and in the presence of counsel. See State v.
Knight, 477 N.J. Super. 400, 405 (App. Div. 2023), aff'd, 259 N.J. 407 (2024)
(holding that "trial courts in their discretion may grant a jury's requests during
deliberations to replay the videos in [slow motion or at other varying speeds,
or with intermittent pauses] one or more times, provided that the playbacks
occur in open court under the judge's supervision and in the presence of
counsel") (emphasis added).
A-2287-22 98 Our opinion in Knight specifically addressed the potential prejudicial
effects of slow motion and other modifications to video surveillance footage.
Its qualifying language—"provided that the playbacks occur in open court
under the judge's supervision and in the presence of counsel"—creates a
bulwark against modifications that alter video footage so substantially as to
effectively create new evidence. In affirming our decision, the Supreme Court
stressed in this regard that "some [video playback] tools or functions may be
so specialized that their usage constitutes an alteration of evidence, or the
creation of new evidence." Knight, 259 N.J. at 413. On the facts presented in
that case, the Supreme Court affirmed the trial court's decision to allow the
jurors to repeatedly review the surveillance footage in the courtroom,
reasoning that "[s]lowing the video down, a familiar adjustment in video
playback, did not change or distort the evidence but simply aided the jury's
examination of what took place in the video by playing it at an easily
discernable pace." Id. at 412-13.
Unlike the matter now before us, Knight did not involve a situation
where the trial court allowed the jury to watch the video evidence in the jury
room. We therefore had no occasion to consider whether other safeguards
besides direct supervision/control by the trial judge might be adequate to
prevent jurors from improperly modifying the evidence—the root concern in
A-2287-22 99 Knight—were they to be entrusted with viewing video evidence in the jury
room. That is an important question, especially in light of modern realities,
because it can hardly be disputed that our system of justice is well served when
jurors meticulously study disputed evidence.
But this is not the case to tackle that question. Because we are not
required in the matter before us to rule on defendant's trial-error contention,
we decline to break new ground on the question of whether, in what
circumstances, and with what limitations/instructions a jury may be provided
with a video player to review non-audio surveillance video in the jury room.
However, to provide guidance to the trial court and parties on remand, we
offer the following comments concerning a different means—one that is
already well supported in the case law—by which the jury may carefully study
videographic evidence at its own pace and in the privacy of its secret
deliberations.
Many of the concerns regarding jury room playback might be avoided by
admitting into evidence carefully selected "screenshots"—still-frame
photographs taken from the video recording that is played at trial. Indeed, one
or more carefully selected freeze-frame screenshots may afford an even better
opportunity for the jurors to meticulously scrutinize an image when, as here,
the surveillance footage is being offered to identify an individual. Cf. Boland
A-2287-22 100 v. Dolan, 140 N.J. 174, 182-83 (1995) (holding that "[t]he use of a magnifying
glass by jurors for exhibits properly introduced at trial is within the trial court's
discretion" and citing out-of-State authority for the proposition that a "jury's
use of [a] magnifying glass to examine photographs was 'the mere taking of a
more critical examination of an exhibit,' not [an] introduction of new
evidence") (internal citation omitted).
This alternative approach rests on well-settled precedent. It is
axiomatic, for example, that trial courts have discretion to admit into evidence
still photographs that are relevant and properly authenticated. See State v.
Thompson, 59 N.J. 396, 420 (1971) ("It has long been the rule in this State that
admissibility of photographs . . . rests in the discretion of the trial court")
(collecting cases); see also Brenman v. Demello, 191 N.J. 18, 30 (2007)
(explaining that photographs are admissible if they are relevant, their probative
value is not outweighed by the risk of undue prejudice, and they are properly
authenticated as a substantially accurate representation of what they depict).
Indeed, we suspect that photographs have been introduced as trial exhibits for
nearly as long as photography has been around.
It is also well established that a photographic exhibit can be "published"
to the jury, meaning not only that it will be passed among the jurors while they
sit in the jury box, but also may be provided to them to review in the jury room
A-2287-22 101 at their own pace. See R. 1:8-8(a) ("The jury may take into the jury room the
exhibits received in evidence"). This time-honored practice affords jurors the
wherewithal to meticulously scrutinize an exhibit and engage in a vigorous
contemporaneous debate over its meaning and relative importance in the
privacy of the jury room. On remand, the trial court and parties should
consider this anodyne option at the retrial.
Reversed and remanded for proceedings consistent with this opinion.
A-2287-22 102
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