NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2955-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MURAD S. LAMPLEY, a/k/a MURAD I. LAMPLEY, MURAD LAMPLEY, SHAEED LAMPLEY, MURAD SHAHEED LAMPLEY, and RADIE,
Defendant-Appellant. ___________________________
Argued March 24, 2026 – Decided April 21, 2026
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-08-2747.
Ethan J. Kisch, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Ethan J. Kisch, of counsel and on the brief). Lucille M. Rosano, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief.)
PER CURIAM
In August 2019, defendant Murad Lampley and two co-defendants were
charged in an eleven-count Essex County indictment 1 with murder and related
offenses for their part in the killing of Shuri Henry in Newark. Before trial, the
State moved, under N.J.R.E. 104(c), to admit defendant's inculpatory statement.
The trial court held testimonial hearings and issued a written opinion granting
the State's motion after concluding that defendant "voluntarily, knowingly, and
intelligently waived his right against self-incrimination."
In March 2023, defendant pled guilty to: second-degree conspiracy to
commit carjacking; first-degree carjacking; second-degree conspiracy to
1 Defendant and co-defendants were charged with: (count one) first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, 2C:11-3a(1), (2); (count two) first-degree murder, N.J.S.A. 2C:11-3a(1), (2); (count three) second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2, 2C:15-2a(1), (2); (count four) first-degree carjacking, N.J.S.A. 2C:15-2a(1); (count five) first-degree carjacking, N.J.S.A. 2C:15-2a(2); (count six) second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1a(1); (count seven) first-degree felony murder, N.J.S.A. 2C:11-3a(3); (count eight) first-degree robbery, N.J.S.A. 2C:15-1a(1); (count nine) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(1); (count ten) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and (count eleven) third- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a(2). A-2955-23 2 commit robbery; first-degree robbery; and second-degree unlawful possession
of a weapon. Pursuant to the plea agreement, the State recommended: an
aggregate twenty-five-year prison sentence, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2 and dismissal of the remaining charges; and for defendant's
previous sentence in a separate unrelated case to be served concurrently. The
trial court sentenced defendant in accordance with the plea agreement; however,
defendant reserved the right to appeal the statement's admissibility.
On appeal, defendant raises the following for our consideration:
I. THE TRIAL COURT SHOULD HAVE DENIED THE STATE'S MOTION TO ADMIT [DEFENDANT'S] CUSTODIAL STATEMENTS.
A. THE STATE CONCEDED [DEFENDANT] WAS IN CUSTODY, SO THE DETECTIVES WERE REQUIRED TO FOLLOW THE FULL ARRAY OF PROTECTIONS AGAINST SELF- INCRIMINATION.
B. DURING THE SECOND INTERROGATION, THE DETECTIVES FAILED TO SCRUPULOUSLY HONOR [DEFENDANT'S] REPEATED INVOCATIONS OF HIS RIGHT TO SILENCE, SO HIS SUBSEQUENT INCULPATORY STATEMENTS SHOULD HAVE BEEN SUPPRESSED.
C. [DEFENDANT'S] LATER REINITIATION AND WAIVER WERE
A-2955-23 3 INVALID BECAUSE, AFTER IGNORING HIS REPEATED INVOCATIONS OF HIS RIGHT TO SILENCE, THE DETECTIVES IMPROPERLY DECEIVED HIM ABOUT THE "TRUE STATUS" OF HIS LEGAL CHARGES TO PRESSURE HIM TO CONFESS.
Unpersuaded, we affirm.
I.
We summarize the pertinent facts and events as we glean them from the
motion record where New Jersey State Police Detective Marcello Pirez, the lead
detective in the case, was the sole witness.
On Thanksgiving night, November 23, 2017, defendant, co-defendants,
and a juvenile were walking through Newark intending to steal a car. The group
spotted Shuri Henry unloading bags from her vehicle while a young child sat on
the steps of her home. Defendant, armed with a "black and grey automatic
handgun," approached Ms. Henry and attempted to rob her. Henry, who
appeared "threatened by [the] group," began to panic and after pressing the alarm
button on her key fob, was shot and killed by one of the co-defendants.
Thereafter, defendant, co-defendants, and the juvenile grabbed Henry's keys and
pocketbook, jumped into her vehicle, and drove off.
A-2955-23 4 On November 30, 2017, defendant was arrested for an unrelated parole
violation and taken to the Essex County Prosecutor's Office ("ECPO") to be
interrogated by the Homicide Task Force. At that time, two co-defendants had
already been arrested. Upon arrival, Detective Pirez provided defendant with a
sandwich and something to drink. Over the next two hours and twenty minutes,
Detective Pirez and his partner, Detective Wilfredo Perez, conducted three
custodial interrogations with defendant.
A.
At 10:25 a.m. Detectives Pirez and Perez entered the interrogation room
and stated they worked for the ECPO Homicide Task Force. Defendant was
informed they "want[ed] to discuss . . . a homicide that occurred at 306 South
20th Street in Newark." Detective Pirez reviewed the Miranda2 warnings form
and defendant confirmed he understood each right. As the detectives explained
the waiver form, the following exchange ensued:
[Defendant]: It's me waiving my right –– no. I don't want to waive my rights.
Det. Pirez: What do you mean by that?
[Defendant]: No. I want a –– a lawyer or somebody to speak to. I don't –– no I can't –– I need a lawyer or a somebody.
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2955-23 5 Det. Pirez: Okay. So, you're requesting your attorney at this time?
[Defendant]: Yes.
Subsequently, the detectives had defendant write "refused" on the form.
The detectives left the interrogation room at 10:31 a.m. and turned off the
recording devices. Detective Pirez then returned to his desk, "approximately 10
to 15 feet" away from the interrogation room and informed the assistant
prosecutor of defendant's invocation.
B.
Roughly fifteen minutes later, defendant knocked on the door of the
interrogation room and informed Detective Pirez that he wanted to speak with
the detectives. They turned the recording devices on and reentered the room at
11:04 a.m. Upon reentering the room, defendant confirmed he had reinitiated
contact with the detectives:
Det. Pirez: . . . you indicated that you wished to speak to us so we came back in this room to speak to you. Is that correct?
[Defendant]: Yeah –– yeah.
Det. Pirez: Okay. Did –– before when we were reading you your [Miranda] [r]ights, you indicated that you requested an attorney at that time. At this time do you wish to have an attorney present or do you wish to talk to us?
A-2955-23 6 [Defendant]: Talk . . . to you.
Defendant confirmed he had neither been threatened nor forced to change his
mind and reengage with the detectives.
Defendant again was informed that the detectives were "going to ask [him]
certain questions regarding a homicide that occurred on November 23, 2017 at
303 South 20th Street, Newark, New Jersey." Moreover, defendant was advised
of each individual Miranda right, confirmed he understood those rights, and
initialed next to each right on the form. When the detectives began discussing
the waiver form, defendant stated: "I don't really want to take my chances."
Nevertheless, he confirmed he understood the waiver form and its implications.
The detectives then asked defendant to sign the waiver form, to which he
responded: "I really want to take my chances, man. I'm tired. . . . Is this me
doing this? This makes me –– telling –– saying I'm –– I was there, everything.
I know. No, no. No. I can't –– I can't." Accordingly, the detectives offered to
clarify any Miranda or waiver questions defendant may have had.
Defendant then inquired as to whether Detective Pirez's cell phone, which
was located on the table, was recording. Both detectives assured defendant the
cell phone was not recording; however, they failed to inform defendant that the
room was being audio and video recorded. Nevertheless, the detectives
A-2955-23 7 informed defendant that they could not proceed unless he waived his rights and,
to ensure he understood his rights fully, Detective Pirez re-read the waiver form
to defendant. Subsequently, the following colloquy occurred:
[Defendant]: I'm –– I'm sorry, but –– but just take me to the jail, please. Because I'm not –– .
....
Det. Pirez: Okay. No problem. So, you're refusing to – you don't – you don't want to speak to us?
[Defendant]: Yeah. I'm sorry, you all. I'm sorry.
The detectives then requested that he write refused on the waiver form.
Although defendant attempted to clarify his reluctance to provide a statement,
the detectives informed him they could not answer any questions unrelated to
his Miranda rights or the waiver form.
Defendant then asked: "So, basically, I'm being . . . –– arrested for this
and not questioned?" To which Detective Perez responded: "Right. You're
being charged with homicide." Detective Pirez continued, "[w]e're not . . .
going to ask you questions in reference to anything or do anything like that , you
know, because you elected not, you know, not to do so. We respect that,
obviously. And . . . that's your right."
A-2955-23 8 At 11:18 a.m., the Detectives concluded the interview, left the
interrogation room, and turned off the recording devices. Detective Pirez then
returned to his desk, near the interrogation room and again informed the assistant
prosecutor that defendant had invoked his right to silence.
Detective Pirez testified that defendant had not been charged with
homicide at that point. He explained that he didn't have authority to charge
defendant irrespective of whether he made a statement but had to get permission
from the assistant prosecutor to file charges. Detective Pirez confirmed that he
did not seek approval for charges until after the third statement.
C.
Approximately a half-hour later, defendant again knocked on the door of
the interrogation room and "indicated that he wished to speak to [the
Detectives]." The recording devices were turned on and the Detectives reentered
the room at 11:54 a.m.
For the third time, Detective Pirez reviewed the Miranda form with
defendant—who said he understood each right and initialed the form. Defendant
signed the waiver form at 11:58 a.m. and acknowledged that he was neither
forced nor threatened to speak with the detectives. Defendant then provided an
inculpatory statement to the detectives, which detailed: (1) on Thanksgiving
A-2955-23 9 night, November 23, 2017, defendant and three others were looking for a car to
steal or someone to rob; (2) they spotted a woman, accompanied by a child,
unloading bags out of a red Jeep; (3) defendant, who was provided a gun by one
of the other individuals, approached the woman and demanded money; (4)
disgruntled with how long things were taking, one of the other assailants took
the gun from defendant and demanded the woman hurry up; (5) the woman,
frightened and panicked, attempted to remove her house key from her key chain
but pressed the car alarm button; (6) one of the others shot the woman and
instructed the rest of the group to "grab the stuff"; and (7) the group jumped into
the Jeep, drove off, and defendant was dropped off near his home.
Defendant then stated: "I want to delete the whole –– the whole thing I
just said. I want to delete everything." He also told the detectives: "That whole
thing, I was just lying. The whole thing I was lying." Thus, the detectives
concluded the interrogation at 12:45 p.m.; however, as they were leaving the
room, defendant stated: "I'm intoxicated. Under the influence." The detectives
left the room, the recording devices were turned off, and defendant was not
interrogated again.
D.
A-2955-23 10 Following Detective Pirez's testimony, the court granted the State's
motion to admit defendant's statement and issued a written decision and order.
The court determined that Detective Pirez was a credible witness based on his
testimony having been "consistent throughout, reasonable, and . . . spoke[n] in
a clear, calm voice." Additionally, the court made factual and legal
determinations regarding each of defendant's three custodial interrogations.
First, the court determined that during defendant's first custodial
interrogation he "invoked his right to an attorney and detectives thereafter
properly ended the interrogation."
Second, the court determined that defendant did indeed reinitiate with the
detectives; however, that "initiation did not constitute a knowing, intelligent,
and voluntary waiver of his rights." The court found that although defendant's
statements "indicate[d] . . . that he did not wish to speak," his "words reflect[ed]
an ambiguous intent to invoke his right." Accordingly, the court held the
detectives were permitted to ask defendant clarifying questions. Moreover, the
court found the detectives' clarifying questions were permissible because they
could "reasonably be interpreted as attempting to figure out whether [d]efendant
was willing to talk . . . or if [d]efendant simply wanted to stop talking
completely." The court also noted that the detectives "properly ended the second
A-2955-23 11 interrogation[]" after clarifying defendant's invocation of his right to silence.
Further, the court acknowledged that defendant was told he was being charged
with homicide before a charging document or arrest warrant was issued; thus,
the court concluded, defendant was aware "of his 'true status' as a suspect in a
homicide."
Third, the court held that defendant's waiver during his final custodial
interrogation was knowingly, voluntarily, and intelligently given. Thus, under
the totality of the circumstances, defendant's statement was admissible.
Furthermore, the court rejected defendant's assertion of being intoxicated and
found: (1) defendant's statement was not credible; (2) there were no indications
that defendant was intoxicated; (3) it appeared defendant regretted his decision
to give a statement and sought to discredit the statement by claiming to be
intoxicated; and (4) Detective Pirez credible that his training and experience
lead him to conclude defendant did not appear to be under the influence of
alcohol, drugs, or narcotics.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. Where, as here, we are tasked with reviewing a grant or denial of a
motion to suppress a statement, we apply a deferential standard of review to the
A-2955-23 12 trial court's findings of fact. State v. S.S., 229 N.J. 360, 379-80 (2017); see also
State v. Prall, 231 N.J. 567, 580 (2018) (quoting Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)) ("the trial court's evidentiary
rulings 'are reviewed under the abuse of discretion standard.'"). Although we
accept the trial court's factual findings insofar as they are supported by sufficient
credible evidence, S.S., 229 N.J. at 381 (citing State v. Gamble, 218 N.J. 412,
424 (2014)), we are not bound by the trial court's interpretations of the legal
consequences that flow from the established facts, Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Harris, 457 N.J.
Super. 34, 43-44 (App. Div. 2018). Accordingly, the trial court's legal
conclusions are reviewed de novo. See State v. Bullock, 253 N.J. 512, 532
(2023) (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)); see also State v.
Handy, 206 N.J. 39, 45 (2011) (finding that whether the facts warrant
suppression is a "purely . . . legal question").
Next, we acknowledge that "[t]he right against self-incrimination is
guaranteed by the Fifth Amendment to the United States Constitution and this
state'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 Miranda, the United States Supreme
A-2955-23 13 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. at 444). Notably, our Supreme Court has emphasized that
"[New Jersey's] common law privilege against self-incrimination affords greater
protection to an individual than that accorded under the federal privilege." State
v. Vincenty, 237 N.J. 122, 132 (2019) (quoting In re Grand Jury Proceedings of
Guarino, 104 N.J. 218, 229 (1986)).
III.
Defendant first asserts the detectives failed to "follow the full array of
protections" under Miranda. We disagree. Indeed, "the State has the affirmative
duty to prove . . . by proof beyond a reasonable doubt[] . . . that the defendant's
statement was voluntary and, if custodial, that the defendant was advised of his
rights and knowingly, voluntarily, and intelligently waived them." State v.
W.B., 205 N.J. 588, 602 n.3 (2011) (citing State v. Yough, 49 N.J. 587, 595
(1967); N.J.R.E. 104(c)).
The State concedes that defendant was subjected to custodial
interrogation; thus, the crux of the inquiry is whether defendant's statement was
the result of an overborne will. See State v. Galloway, 133 N.J. 631, 655 (1993)
A-2955-23 14 (citing State v. Miller, 76 N.J. 392, 405 (1978)). Though we remain cognizant
of the inherent coercive nature of custodial interrogation, we nevertheless
reaffirm that "[e]fforts by a law enforcement officer to persuade a suspect to talk
'are proper as long as the will of the suspect is not overborne.'" State v. Maltese,
222 N.J. 525, 544 (2015) (quoting Miller, 76 N.J. at 403); see also State v. Di
Frisco, 118 N.J. 253, 257 (1990) (finding officers "encouragement of trust" did
not render the confession involuntary).
In determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of the circumstances surrounding the arrest and interrogation, including such factors as "the suspect'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." Additionally, "[a] suspect's previous encounters with law enforcement has been mentioned as [a] relevant factor."
[State v. Presha, 163 N.J. 304, 313 (2000) (quoting Miller, 76 N.J. at 402) (internal citations omitted) (emphasis added).]
The detectives provided defendant with the full array of his Miranda rights
and his subsequent waiver was knowingly, voluntarily, and intelligently given.
Defendant was properly Mirandized on three separate occasions and before the
third interrogation, where defendant provided an inculpatory statement, the
A-2955-23 15 detectives accurately read and explained the Miranda waiver form. Further,
defendant confirmed that his decision to provide an inculpatory statement was
not the result of an overborne will:
Det. Pirez: . . . as far as some of the questions I have for you before I get into that, I don't –– you know, you knocked on the door. You wanted us to come back in here and speak to you. Is that correct?
Det. Pirez: Okay. And as far as that goes, did anybody threaten you? Did anybody come in here and beat you up . . . or force you to do that or, you know (indiscernible) to come and talk to you?
[Defendant]: No.
In looking at the totality of the circumstances, we conclude defendant 's
statement was knowingly, voluntarily, and intelligently given because: (1)
defendant's age is not at issue considering he was in his late twenties at the time
of his custodial interrogations; (2) defendant graduated high school, appears to
be of average intelligence, and does not allege his education or intelligence
played a factor in his decision to provide a statement, see State v. Carpenter,
268 N.J. Super. 378, 385 (App. Div. 1993) (holding, even though "defendant
[was] illiterate, ha[d] an I.Q. of 71, and left school at 18[,]" they were capable
of understanding the Miranda warnings); (3) the detectives verbally advised
A-2955-23 16 defendant of his Miranda rights and the waiver form three times, see State v.
A.M., 237 N.J. 384, 400 (2019) (discussing how reading the Miranda and waiver
forms aloud ameliorates issues regarding a suspect's ability to understand); (4)
defendant's interrogations were cumulatively just over two hours, see Berghuis
v. Thompkins, 560 U.S. 370, 397-99 (2010) (finding a suspect's waiver
voluntary despite him maintaining silence for two hours and forty five minutes);
(5) the only repeated questions asked by the detectives were for purposes of
clarification; (6) the record does not show, nor does defendant allege, that the
detectives subjected him to physical punishment, see State v. Knight, 183 N.J.
449, 468 (2005) (quoting P.Z., 152 N.J. at 115) (finding that without threats or
police misconduct, even a defendant's "subjective fear" is insufficient to create
a Fifth Amendment violation); and (7) defendant's history with the criminal
justice system, including eleven arrests and three indictable convictions, implies
he fully understood his Miranda rights and the waiver process, see Galloway,
133 N.J. at 656-57 (considering, among other things, a defendant's prior
experience with police as relevant to the voluntariness of their waiver although
the defendant had only "some minimal experience").
The privilege against self-incrimination includes "'the right of a person to
remain silent unless he chooses to speak in the unfettered exercise of his own
A-2955-23 17 free will and to suffer no penalty . . . for [] silence.'" State v. Camacho, 218 N.J.
533, 543 (2014) (quoting P.Z., 152 N.J. at 100-02). Upon review of the record
and the recordings of defendant's interrogations, we find defendant's inculpatory
statement resulted from an unfettered exercise of his own free will.
IV.
Next, defendant argues "the detectives failed to scrupulously honor [his]
repeated invocations of his right to silence[]." We are unpersuaded. Per
Miranda, scrupulous adherence requires that the interrogation cease if the
suspect "indicates in any manner, at any time prior or during questions, that he
wishes to remain silent[.]" 384 U.S. at 473-74. See also State v. Gonzalez, 249
N.J. 612, 628 (2022); State v. Wessells, 209 N.J. 395, 402 (2012); State v.
Wright, 97 N.J. 113, 126 (1984). However, our Supreme Court has articulated
that where an invocation of the right to silence is ambiguous, law enforcement
must either "(1) terminate the interrogation or (2) ask only those questions
necessary to clarify whether the defendant intended to invoke his right to
silence." S.S., 229 N.J. at 383 (citing State v. Johnson, 120 N.J. 263, 283
(1990)). Notably, where a defendant's invocation is ambiguous "clarification is
not only permitted but needed." State v. Alston, 204 N.J. 614, 624 (2011).
Clarifying questions are impermissible if they "operate to delay, confuse, or
A-2955-23 18 burden the suspect in his assertion of his rights." Johnson, 120 N.J. at 283
(quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987)).
We recognize that where a defendant's invocations of their Miranda rights
are not scrupulously honored, subsequent statements following waivers may be
deemed involuntary and inadmissible. See State v. Wade, 252 N.J. 209, 219
(2022); State v. Dorff, 468 N.J. Super. 633, 646 (App. Div. 2021). Nevertheless,
we find, in accordance with the trial court's written decision, that in defendant's
second statement, he ambiguously invoked his right to counsel—which
necessitated clarifying questions—and the detectives concluded the
interrogations once defendant's invocation of his rights was unambiguous.
Regarding the first interrogation, the record shows defendant was read
each individual Miranda right and confirmed he understood each right. When
the detectives began discussing the waiver form with him, however, he stated:
"No. I want . . . a lawyer or somebody to speak to. I don't –– no I can't –– I
need a lawyer or somebody." The detectives then clarified: "Okay. So, you're
requesting your attorney at this time?" When defendant responded "yes[,]" the
detectives concluded the interview. Thus, the detectives did scrupulously honor
defendant's invocation in the first interrogation by "terminating all questioning
'until counsel has been made available [or] unless the accused [] initiates further
A-2955-23 19 communication, exchanges, or conversations with the police.'" State v. Chew,
150 N.J. 30, 61 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981))
(emphasis added).
In the second interrogation, after defendant reinitiated with the detectives,
he again invoked his rights in an ambiguous fashion. We hold, similar to the
trial court, that the following colloquy demonstrated an ambiguous invocation
succeeded by neutral clarifying questions:
[Defendant]: "Yeah. But –– . . . they said I got to explain, I got to talk. I don't have to – I don't know man. I can't –– I can't –– I can't. I'm sorry. I can't –– I can't –– I can't. I'd rather take my chances. I'd rather take my chances. 3
Det. Perez: Do you feel like you want to ask us some questions? Is that it? Is that's . . . what's holding you back?
Det. Perez: . . . and just hear me out. Even if you answer this and say, yeah, you know and then later on as we're talking you feel like, you want to stop, then
3 This ambiguous invocation is analogous to one made in Johnson, where the officers were permitted to ask qualifying questions after the suspect stated: "I can't talk about it." 120 N.J. at 284. See also State v. Gonzalez, 249 N.J. 612, 631-32 (2022) (finding "[b]ut what do I do about an attorney and everything?" to be an ambiguous invocation requiring clarification); State v. Cardona, 268 N.J. Super. 38, 43-46 (App. Div. 1993)(noting "[n]o, for what? No, with what money, I have no money . . . ." was not an unambiguous assertion of the right to counsel). A-2955-23 20 you . . . could stop. You understand? You understand what I'm telling you? At any given time – just because you signed it once . . . we put it to the side, doesn't mean you could – you can't go back to it and say, hold up. You know, maybe . . . I want to take the [Miranda] . . . and . . . I want to stop right now. Okay? But –– and that's your prerogative. I'm not telling you what to do. All I'm saying is for us to proceed from this point forward, you know what I'm saying, like for us to understand each other a little bit better, we have to go through the [Miranda] and you have to understand what it means which you already. I'm pretty sure you already do. But, we – I can't answer any – like, . . . I wish could keep conversating with you, but we can't. Not – not –
[Defendant]: Until I waive my rights?
Det. Perez: –– not until –– yeah. And then at that point, you know, if you're not comfortable with the questions we're asking you, then . . . you do what you do.
Following that discussion, the detectives again reviewed the waiver form
with defendant and inquired whether he had any questions they could clarify
regarding the form. Defendant then stated: "I'm – I'm sorry, but – but just take
me to the jail, please." After again clarifying that defendant could stop his
statement at any time, Detective Pirez clarified defendant did not wish to give a
statement, requested he write refused on the waiver form, informed defendant
they could not answer any non-Miranda related questions, and concluded the
interview.
A-2955-23 21 Per State v. Rivas, ambiguous invocations permit law enforcement to
"make[] additional neutral inquiries that clarify that the suspect desires to waive
his right to counsel." 251 N.J. 132, 154 (2023) (citing Alston, 204 N.J. at 624).
The detectives' attempts to clarify were neutral because they did not seek to
illicit incriminating information; instead, the detectives' questions and
comments only sought to: (1) ensure defendant understood his Miranda rights
and the waiver form; and (2) clarify whether defendant intended to invoke his
Fifth Amendment rights. Accordingly, we hold the detectives' conduct comports
with the requirements imposed on law enforcement pursuant to S.S. See S.S.,
229 N.J. at 383 (citing Johnson, 120 N.J. at 283-84).
Lastly, defendant asserts that his subsequent waiver during the third
interrogation should have been rendered inadmissible because he was deceived
regarding his true legal status. Specifically, defendant argues that the detectives
telling him he was "being charged with homicide" during the second
interrogation, before any formal charges or an arrest warrant, was a
misrepresentation of his true legal status. We are unpersuaded.
Although police action may undermine the voluntariness of a confession,
"we continue to consider the totality of the circumstances to decide whether the
A-2955-23 22 State has proven beyond a reasonable doubt that a defendant knowingly,
intelligently, and voluntarily waived his rights." State v. O.D.A.-C., 250 N.J.
408, 423 (2022) (citing State v. Sims, 250 N.J. 189, 211 (2022)). On this basis,
the Court in O.D.A.-C. expressly "decline[d] to adopt a bright-line rule that
would require suppression any time an officer makes an improper comment
during an interrogation." Ibid.; see also State v. Puryear, 441 N.J. Super. 280,
296, 300-01 (App. Div. 2015) (finding, despite the defendant being improperly
Mirandized in a prior interrogation—thus warranting suppression—there was
"no reversible error in the trial court's decision to admit [his subsequent]
statement").
While courts have historically recognized that misrepresentations made
by police officers are relevant to the totality of the circumstances analysis,
"misrepresentations alone are usually insufficient to justify a determination of
involuntariness or lack of knowledge." State v Cooper, 151 N.J. 326, 355 (1997)
(internal citations omitted). Instead, a confession is deemed involuntary insofar
as the misrepresentation made by the officer(s) "actually induced the
confession." Ibid. Contrast State v. Roach, 146 N.J. 208, 226-27 (1996)
(finding that although the defendant was likely misled as to whether he was
being questioned as a witness and not a suspect, "defendant's inculpatory
A-2955-23 23 statement was [not] extracted by basically unfair means"); with State v. Reed,
133 N.J. 237, 240-43 (1993) (rendering a confession inadmissible where the
police precluded a defendant from corresponding with his attorney by
misleading the attorney and the defendant as to the defendant's suspect status in
the investigation).
Ultimately, the question of waiver is determined in "the totality of the
circumstances surrounding the custodial interrogation." State v. Tillery, 238
N.J. 293, 316 (2019) (quoting A.M., 237 N.J. at 398). Moreover, the totality of
the circumstances analysis requires courts to look not just to the language used
by law enforcement, but to the surrounding facts and circumstances as well. See
State v. Kremens, 52 N.J. 303, 311 (1968). Accordingly, even where
improprieties may exist, the question is whether the error is "harmless beyond a
reasonable doubt." Tillery, 238 N.J. at 319; see also State v. Maltese, 222 N.J.
525, 550 (2015) (utilizing the harmless beyond a reasonable doubt standard to
determine if a defendant's Miranda rights were violated); S.S., 229 N.J. at 381
(requiring the admission of evidence be "so clearly mistaken" that the "interests
of justice demands intervention); R. 2:10-2 ("any error . . . shall be disregarded
by the appellate court unless it is of such a nature as to have been clearly capable
of producing an unjust result.").
A-2955-23 24 Indeed, where the police use trickery to induce a statement the suspect 's
waiver may be deemed involuntary. See Nyhammer, 197 N.J. at 407 (citing
Miranda, 384 U.S. at 476). Further, the use of fabricated evidence to induce a
waiver is equally improper. See e.g., State v. Chirokovskcic, 373 N.J. Super.
125, 133-34 (App. Div. 2004) (finding that fabrication of evidence diminishes
confidence in the voluntariness of a confession); State v. Patton, 363 N.J. Super.
16, 46 (App. Div. 2003) (holding that where a confession stems from fabricated
evidence, it is per se inadmissible). As we previously articulated in State v.
Diaz:
We draw 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" within the meaning of [State v. A.G.D., 178 N.J. 56, 68 (2003)], 4 on the other hand. Misleading a defendant about the seriousness of the offense(s) for which he or she was arrested is, in our view, qualitatively different from misleading a defendant about the factual evidence of his or her guilt. Stated differently, police are allowed to use certain forms of trickery while posing substantive questions following a knowing and voluntary Miranda waiver. Such trickery is designed to induce an interrogee who has already waived his or her Miranda rights to make factual statements that constitute incriminating admissions. We are aware of
4 In A.G.D., the Supreme Court imposed, as an additional requirement to police interrogations, "the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." 178 N.J. at 68-69. A-2955-23 25 no precedent, however, that authorizes trickery as part of the waiver process, that is, trickery designed to induce a person to yield his or her right to remain silent and consult with an attorney before answering substantive questions. Indeed, Miranda itself explains to the country that 'any evidence that the accused was . . . tricked . . . into a waiver will, of course, show that the defendant did not voluntarily waiver his [or her] privilege.' 384 U.S. at 476.
[State v. Diaz, 470 N.J. Super. 495, 525 (App. Div. 2022) (emphasis added).]
Notably, however, the facts here are distinguishable from Diaz. In Diaz,
the defendant was found to have been misled as to his true legal status because
he was "provid[ed] a deliberately vague and incomplete answer as to the reason
he was taken into custody." 470 N.J. Super. at 518. Specifically, the defendant
in Diaz was told Detectives were doing a narcotics investigation when, in
actuality, they were conducting a homicide investigation. Id. at 505-06.
Defendant was at all relevant times aware of the seriousness of the
offense—he was informed more than three times that the Detectives wanted to
discuss the November 23, 2017 homicide. This conforms with our Supreme
Court's comments in Vincenty: "call[ing] for law enforcement officials to make
a simple declaratory statement at the onset of an interrogation that informs a
defendant of the essence of the charges filed against him." 237 N.J. at 134.
Certainly, we recognize that at the time the detectives answered defendant's
A-2955-23 26 question and told him he was being charged with homicide there were no official
charges. This is one factor in the totality of the circumstances analysis.
However, defendant was nevertheless aware, from the onset of the first
interrogation, that the detectives had questions regarding a homicide. Thus,
defendant was not "misl[ed] about the seriousness of the offense" in a manner
analogous to Diaz. 470 N.J. Super. at 525.
Our review of the case law leads us to the conclusion that appraisal of
one's "true legal status" requires that law enforcement does not diminish the
seriousness of the charges or allegations against a defendant. See e.g., State v.
Cooper, 151 N.J. 326, 355-56 (1997) (upholding a confession as voluntary
despite the police's failure to inform defendant the offense was death penalty
eligible); A.G.D., 178 N.J. at 68 (invalidating a waiver because the police never
told the suspect they were in possession of a criminal complaint and arrest
warrant for him); Diaz, 470 N.J. Super. at 514-15 (stating "the suspect must be
informed of the nature and seriousness of the charges."); Vincenty, 237 N.J. at
134 (holding that failure to disclose charges filed against a suspect inhibited the
ability to "understand . . . the heightened magnitude of the interrogation"). No
such diminishment of the seriousness of the allegations against defendant
A-2955-23 27 occurred here. Defendant was always aware of his true legal status as a suspect
in a homicide investigation.
The record is devoid of any attempt by the detectives to overbear
defendant's will by answering his question about being charged. Nor is there
evidence that Detective Perez's words compelled defendant to reinitiate a
conversation at the third interview. Rather, defendant stated his decision to
speak was voluntary and he was not forced to speak with the detectives. He
received new warnings. The totality of the circumstances supports the court's
conclusion that the State proved beyond a reasonable doubt that defendant
knowingly and validly waived his rights and gave an admissible statement.
To the extent we have not addressed any arguments raised by defendant,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
A-2955-23 28